Monthly Archives: July 2013

King’s Speech

Rep. Steve King made a very confusing speech on Friday. It was confusing, first of all, because anytime a congressman starts talking about the development of faith and rationality since Moses and doesn’t stop talking for 27 minutes, people are going to be confused. Second, I just don’t understand how someone who so obviously believes in having an open mind and in thinking critically can be so inconsistent and nonsensical.

King was defending a comment he made earlier this week about undocumented immigrants, in which he seemed to suggest that most undocumented immigrants who came across the border as children were smugglers, and in addition, that they are all underweight and muscular from hiking through the desert with drugs. He’s been roundly excoriated for saying so, including by the speaker. In his speech on Friday, he laid out the  evolution of the freedom of speech over three millennia, suggested that his own freedom of expression was being restricted, and challenged his opponents to debate him on the merits:

We’re not going to say, ‘You can’t get together and talk about these things,’ because we know that in open public discourse and dialogue–what emerges from that are, we believe in this reason that we’ve inherited from the Greeks and other civilizations–that what will emerge is the most logical, rational policy. That’s what I’m advocating for, Mr. Speaker. I want the most logical, rational policy.

Greek rationality, he claimed, somehow depended crucially on Mosaic law. I have no idea what he’s referring to, so it wouldn’t be fair for me to object to that aspect of his argument or any of the other moments of historical revisionism in the speech. To summarize King’s thesis, then, exercising the God-given liberty to debate issues publicly and express oneself plainly is a duty, and it leads to optimal policy. I agree wholeheartedly with this sentiment. Yet if King believes it himself, then he should grant that others have an equal right to mock him when he says things that don’t make sense. That’s how we develop good policy in this country.

The congressman went on to complain that others are not thinking critically about immigration. “We send our kids off to school and sometimes they’re just taught a mantra, but they’re not taught how to take ideas apart and understand the components of them and put them back together,” he said. Let’s take King’s ideas on immigration apart and describe some of their components. To be fair, after listening to his speech, I do think his remark earlier this week was taken out of context to some degree. He honestly meant not to insult, but to convey concern for the welfare of children involved in smuggling drugs with his comments about their weight and musculature. He truly is worried about the danger to anyone trying to hike into the country illegally through miles and miles of wilderness. “That’s appalling to me, the death across the Arizona border,” he said on Friday.

Oddly, he thinks the best way to act on his abundance of compassion for those people crossing the border is to make doing so more difficult and dangerous for them. His proposals would force them into even more inhospitable and remote territory. The goal seems to be to make it as likely that they die of a gunshot wound as of thirst. The fence has, predictably, made the crossing much deadlier, and the obvious way to help any children who might be involved in a cartel’s smuggling operation would be to tear it down.

Also, I could be wrong, but I don’t think anyone has suggested removing penalties for trafficking or limiting this government’s efforts to pursue the cartels in Mexico. King was conflating two separate legal issues when he claimed that the bill “would legalize those people.” Additionally, the fundamental argument of the Dreamers stands. Whether a child is brought over illegally by their parents or is a paid mule for a cartel, they aren’t culpable for that decision.

Finally, King said that many of them had carried 75 pounds of marijuana with them across the border when they immigrated illegally as children, which is impossible. Since King has defended this number, I’m very suspicious of his sources in the border patrol. Their agency obviously has everything to gain from exaggerating the problem, and the idea that cartels would rely in any significant way on children to carry their goods on foot through the desert doesn’t make much sense anyway, just from an economic perspective. (Luke O’Neil catalogues King’s other errors.)

The question at this point is whether King is worth debating. Why bother to analyze his arguments at all, since they’re so shoddy? For me, the fact that King fails to satisfy the basic requirements of rationality makes his defense of the project of reason very interesting, and a little disturbing. Admittedly, he is only one datum. Yet he is able to explain what you might call the standard model of how competing ideas should develop into shared beliefs and public policy in a free country, while simultaneously demonstrating in his own person the total failure of that model.

You also can’t just dismiss the guy as a reactionary extremist, either. For now, Congress depends on the consent of people like him to take any real action, meaning that the views of the conservative wing of the Republican Party are effectively determining national policy. Boehner might have scolded King for comparing Mexican kids’ calves to cantaloupes, but he has not said anything about bringing the bill to a vote, which shows you where the real power in the House G.O.P. caucus is. Likewise, it’s the deniers of climate change who continue to determine the federal government policy by barring action. King made his views on this issue clear three years ago:

There have been many times in the history of the planet that we’ve had higher concentrations of CO2 than we have here today. There are a couple of German engineers that took that theory apart and proved it wrong in a lab. I’ve read through that, but I’d have to go back to school for a half a year or a year to tell you I followed every bit of their rationale. But the presumption of the Greenhouse Effect is at least, from what I saw, was pretty convincingly rebutted.

This kind of reasoning is reprehensible, and it is leading inexorably to global catastrophe and loss of life. Since this reasoning rejects the product of the scientific process, it is also difficult to reconcile with the belief King articulated in the ability of a group of people, talking reasonably with another and offering evidence in support of their views, to describe the world accurately and choose the best course of action. (Here is the paper he’s referring to, which was not subject to peer review. Here’s a compilation of responses. To summarize them, without the greenhouse effect, it’s difficult to account for the fact that the earth isn’t as cold as the moon.)

Let’s look again at how King describes rationality. The archetype he cites is Jesus’ exchange with the authorities in John 18:

The high priest questioned Jesus about his disciples and about his teaching. Jesus answered, “I have spoken openly to the world; I have always taught in synagogues and in the temple, where all the Jews come together. I have said nothing in secret. …”

The author’s concern throughout this gospel is with the standards of evidence and testimony appropriate to proving who Jesus is. Before his death, Jesus begins to describe one such standard. When someone’s view of the world is transparent and declared publicly, there are plenty of opportunities for others to object if there are grounds for objection. A person demonstrates her conviction and earnestness by making her views known. Gerlich and Tscheuchner, King’s German engineers, failed to meet this standard when they did not submit their manuscript for peer review. If they had, there would have been an opening, as Jesus implies next, for confrontation, for give and take. “Why do you ask me?” he continues:

“Ask those who heard what I said to them; they know what I said.” When he had heard this, one of the police standing nearby struck Jesus on the face, saying, “Is that how you answer the high priest?” Jesus answered, “If I have spoken wrongly, testify to the wrong. But if I have spoken rightly, why do you strike me?”

Jesus offers up his divinity to the exchange of point and counterpoint. We tend to think of faith as not being something to subject to argumentation, but John’s Jesus claims otherwise. The passage explains in what sense King is able to claim that participating in public debate is a God-given liberty: for John and his contemporary readers, the appeal to someone else’s reason went together with Christianity as means of liberating yourself from the arbitrary rule of the powerful in the ancient world.

Small consolation for the millions of immigrants living undocumented in the country now, for whom power must now seem as arbitrary as ever. Despite espousing an entirely sensible view of rationality, King and the party he represents remain thoroughly and frustratingly irrational.

Maybe there’s a problem with the standard model. Maybe, even when people claim to be trying listen carefully to their opponents, their views are inevitably determined by economic interests or personal hatreds. Maybe that is Jesus’ message in John 18. It could be that rather than arguing for a standard of evidence based in transparency and mutual dialogue, Jesus wants to demonstrate how inadequate are the methods we use in this world are for separating true from false. That possibility raises the same question a despairing Pontius Pilate asks at the end of the chapter: “What is truth?”

You can watch King’s speech here.

Vigilantes in the News

President Obama asked a powerful rhetorical question yesterday about the death of Trayvon Martin:

If Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?

Zimmerman took the law into his own hands, and Martin would have been justified in doing the same if he had been carrying a weapon. What moral or ethical principle could one have appealed to that would have been unavailable to the other? When a legislature allows individuals to make and apply the law, it ceases to be law and becomes mob violence.

Now let me pose a question analogous to the president’s: If a federal agency were likewise taking the law into its own hands in the name of protecting law-abiding citizens, would one of its employees be justified in similarly removing himself from legality and providing classified documents about the agency’s operations to the press?

If the answer to that question is at least ambiguous, to paraphrase Obama, it seems that we might want to examine the laws that authorized that agency’s activities.

No evidence has emerged so far that the National Security Agency has done anything illegal, and the same could be said of Zimmerman. Yet the Florida state legislature and Congress passed laws that placed both actors outside the realm of legality, in the one case, by setting a limit to the reach of the law in personal altercations, and in the other, by allowing a court to develop a body of common law in secret and without an adversarial process. All of that legislation is suspect for the same reason, which Obama alluded to in his remarks yesterday.

The rule of law is not simply the result of legislation enacted by a duly constituted body. The rule of law also depends on, among other conditions, rules that are applied universally and equally, rules that are public and transparent, and checks and balances that allow for meaningful appeals. Legislatures and courts can constrain the rule of law, placing certain kinds of activity substantively beyond legitimate authority.

There is nothing unusual about their doing so, especially in this country, where the very idea of a law that transcends individual judgments of right and wrong has always been somewhat difficult for us to accept. Adam Gopnik explains how the legal principle of “standing your ground,” now codified in many states, developed in the nineteenth century:

In English common law, there was an old concept that, if you were engaged in conflict and killed someone, to prove self-defense you had to demonstrate that your back was—in most cases, literally—against the wall. You had a “duty to retreat.” In America, the new concept was that you had no duty to retreat—indeed, you had an obligation not to retreat. You were more or less required to blast away at anyone who approached you with, as you saw it, ill will. You didn’t have to show that you had tried to escape the confrontation. In 1856, Texas law … gave private citizens “wide discretionary powers to kill their fellow citizens legally and with impunity.”

This was the legal foundation underlying the Wild West, a time and a place animated by an utterly inconsistent notion of legality. The individual made and applied the law for himself, and the state granted him the right to do so. It was a system defined by vigilante justice, that quintessentially American contradiction in terms.

Based on what’s been reported about him, Gen. Keith Alexander, the head of the National Security Agency, appears to be firmly within this intellectual tradition. He has pressured Congress to constrain the rule of law in order to permit him and his posse to ride through the streets of cyberspace unhindered. Sometimes he has gone as far as lawbreaking himself: after September 11, 2001, he ordered his subordinates to begin illegally monitoring the calls and messages of U.S. citizens unconnected with terrorism. He is a vigilante in much the same way that Zimmerman is. I don’t intend that as a judgment on Alexander’s character. I am willing to believe that he is committed to his life’s work only for the best reasons. Still, both he and Zimmerman have by their actions articulated the view that justice doesn’t belong in the hands of the legislature. The difference between them is that one believes he is protecting a gated community of 300 million.

The question isn’t whether what Zimmerman and Alexander did was legal, as Chase Madar explains. Yet that question is still important, because it brings us to the limits we’ve collectively placed on the law in these cases. There is an inscription on wall of the Department of Justice that reads, “Where law ends, tyranny begins,” which is a line from Locke’s Second Treatise. Locke was referring to illegal acts, yet the legal actions of Zimmerman and Alexander are more alarming than ordinary crimes or abuses of authority. When a bureaucrat embezzles funds or when a man kills his rival in anger, the code by which society operates is not brought into question. The criminals are punished, and the state’s legitimate authority is restored. I’d like to reinterpret Locke’s statement to refer to that line in the dirt that the law does not cross, beyond which lies the tyranny of the mob. Zimmerman and the digital surveillance apparatus placed themselves beyond that line, one by arrogating to himself the police power, the other by acting on the authority of a secret and non-adversarial court. Because neither will be punished, the rule of law in this country is endangered.

I’m most worried and angered by the National Security Agency’s actions because they are a fundamental threat to the rule of law. If that seems like too abstract a principle to be worth defending, Martin’s death demonstrates the consequences of mob rule. I’m not sure why we shouldn’t see his death as analogous to that of Abdulrahman al-Alawki. The son of the radical cleric Anwar al-Alawki was another innocent bystander who likewise became the collateral victim of substantively extralegal efforts to ensure the safety of U.S. citizens.

In Which, Heedless of the Lessons of Modern History, I Intervene in a Conflict I Barely Understand

In a major escalation of the brewing conflict over Friedrich von Hayek’s legacy, already two months old, Kevin Vallier has issued a new attack on an essay by Corey Robin in The Nation. Robin claims that Hayek and the other economists of the Austrian School have what he calls an elective affinity with the philosophy of Friedrich Nietzsche.

To summarize Vallier’s piece, he discusses a number of passages cited by Robin in which Hayek says some extremely elitist and frankly offensive things, explains Hayek’s argument in each case, and then says, “There’s no elitism in this Hayek passage.”

That isn’t fair, actually. Vallier makes several good points. He certainly falls short, though, of proving what he states at the end: “Corey Robin is bad at Hayek. You don’t do intellectual history like this. It’s irresponsible.” That remark is completely unjustified. It diminishes what is otherwise a thorough and cogent response to Robin’s exegesis — a response that reveals an interesting set of questions about Hayek’s ideas that are not easily resolved.

These questions could be formulated as follows: If you have elitist views, but if you have good reasons for having those views, are you still an elitist? Alternatively, do all libertarians, in so far as they defend extremes of entrenched inequality and oppose the redistribution wealth, hate the poor and adore the rich? Put that way, it’s clear why Robin’s piece has been so widely discussed. The argument that Hayek is an elitist in a normative sense applies equally to most libertarians. It’s an indictment of the entire project.

It is possible, of course, to argue that a high degree of both economic liberty and inequality is good for everybody, and that as a result, libertarianism is the worldview that shows the most compassion for the poor. Robin does not address such an argument. He does not condescend to, you could say. He approaches conservatism not as a philosopher, but as an intellectual historian, or maybe as an epidemiologist. None of his arguments have any bearing on the validity of libertarianism. Instead, as he explains in a defense, he is simply pointing out the elective affinity between Hayek and Nietzsche. Both defended the elite, and for broadly similar intellectual and historical reasons:

I draw out deep structural similarities between two ways of thinking (about value, elitism, and the role of struggle and sacrifice in the creation or definition of value) that are seldom put in dialogue with each other. The reason I bring together Nietzsche and the Austrians (as opposed to other figures) is that a similar project animates their thinking: the effort to repulse the socialist challenge of the late 19th and 20th centuries and, behind socialism, the elevation of labor and the laborer as the centerpiece of modern civilization. The idea that the worker drives not only the economy but culture and society as well–and the concomitant notion that an alternative formulation of value might help repel that idea and the politics it inspires—is the polemical context that unites these figures…

The point of an elective affinity is that there’s something in the two traditions—a deep structure of thought common to both that might not be immediately visible in each or arguments peculiar to each that are nevertheless congenial to both—that draws their proponents to each other. Or that explains why proponents of the one, once they have abandoned it, may subsequently be drawn to the other. Or why a culture—or political movement—may comfortably birth or house both at the same time. In the case of a political movement, where power and interests and ideas mix and mingle in ways that don’t always logically fit or follow, elective affinities can be especially potent.

You can accept Robin’s argument entirely and still be a libertarian; if you are, he can still include you among the elitists, because the set as recursively defined by relationships of elective affinity among its members (with Nietzsche as n-naught) is extremely broad. It includes many conservative thinkers in various historical periods and geographical regions. This method might seem unfair on Robin’s part — guilt by association, and a refusal to engage substantively with Hayek’s arguments. I think it is a useful approach as long as it is properly understood.

Let’s hold our noses, then, as we pore over Hayek’s fetid apology for the elite.

Hayek argues that at least some people in society ought to have enough wealth to assume the risks involved in experimentation and innovation.

All right, let’s stop right here. I’m going to betray my ignorance of Hayek immediately and digress: this argument is completely unconvincing to me. If I were allocating society’s resources and my goal were to encourage innovation, I would distribute the wealth as evenly as possible, since the people who truly reinvent some aspect of society rarely have economic motivations, and often do so at great personal expense. The best approach would be to diversify my investment in society’s human capital as much as possible. There is probably some element of the argument that I’m unaware of. Anyway, the point is irrelevant.

Hayek’s concern is that, through the democratic process, the majority will limit the wealth of the elite in order to protect themselves from poverty. The majority must in fact be protected from themselves, according to Vallier:

The challenge here is that engaging in such legislation will not only make the employed worse off, it will make them less free. Hayek emphasizes in the chapter that the employed as free only if they have lots of occupational choices available to them. But they only have those choices if there are entrepreneurs and others with big risk appetites to create new occupations, businesses and the like.

Let’s accept this dubious, nauseous argument and ask simply whether it is elitist. In one sense, it is not, because it is motivated by a concern for the liberty of the working class. On the other hand, to say that this argument is not elitist is to ignore entirely how it and similar arguments are typically used in their historical and political contexts: by people like Mitt Romney and his donors to rationalize the opulence in which they live. Yes, these are elitist arguments, in that they serve the elite. Moreover, there is quite clearly an elective affinity, as Robin defines the phrase, between Hayek and his contemporaries and the wealthy members of the conservative political movement in the United States today, who likely lack both all understanding of Hayek and all compassion for the working class.

This is worth knowing because people are not completely rational. They do not reason all the way from first principles to their conclusions and their actions (a crucial element of Alexis de Tocqueville’s argument in Democracy in America). At some point, far back in the cobwebby corners of the mind, reason gives way to imagination and tradition. It’s back there that ideas have their power over people, from generation to generation and continent to continent.

From Vallier’s point of view, a statement like that one is utterly unhelpful and frustrating. It denies him the status of a person participating in an argument and denigrates him to a mere agent of history. Sorry, Kevin. Studying these elective affinities, these deep trends in intellectual history, is a very valuable pursuit as long as it does not prevent us from engaging with the rational substance of one another’s ideas, but instead forces us to examine our own premises more carefully.

Anyone who wants to understand contemporary conservatism must also understand its elective affinity with Hayek and Hayek’s with Nietzsche, which Robin convincingly demonstrates.

Vallier objects to Robin’s claim that in both Hayek’s system and Nietzsche’s, the elite are arbiters of value. As manufacturing techniques improve and goods become cheaper, products first available to the wealthy become available to the working class. For example, Apple makes expensive phones, and Samsung makes cheaper versions of the same device. Vallier insists that this model of the origin of societal values is different from Nietzsche’s:

Hayek is not trying to justify the claim that the masses must in any sense be deliberately “guided” by people but rather institutionally guided by their consumption choices, which is different. The word “guided” is crucially ambiguous. It is not that people ought to follow elites because they have superior knowledge, character, etc. Instead, the information and options available to the masses have been made available to them via those who have as a matter of fact discovered, produced and consumed things for the first time. How could it be otherwise?

Yet what the rich actually discover, produce, and consume reflects their values. As all sides in this debate concede, modern economics, including Hayek, is subjectivist with regard to use-value. As a result, the infrastructure and the knowledge for the production of a potentially infinite range of goods is never developed. Instead, society develops the ability to produce those goods which are defined as goods by the rich. All of the world’s technology companies are now learning how to mimic the iPhone, because for largely aesthetic reasons, the world’s wealthy decided they liked it. On a more serious note, global capitalism still struggles to produce drugs to fight the diseases of the developing world — a project that should be a matter of economic necessity, not merely of charity.

Hayek’s and Nietzsche’s models are thus quite similar, as Robin argues. (In an earlier volley, Vallier faulted Robin of using the word “value” to refer to different kinds of values, such as moral values and economic values, as I do. Robin’s counterargument that all of these kinds of value are indeed interchangeable is convincing.) Hayek presents a system in which the elite of society assign value to various moral or economic ends, which become the values of society as a whole.

Again, this does not mean that Hayek advocates for Übermenschen, and his adherents can reject the idea of Übermenschen without inconsistency. Hayek is not necessarily a fascist. Neither is Nietzsche, for that matter. Yet to understand the motivations of conservative movements over time, it is important to examine these affinities.

A final point: Vallier emphasizes the fact that Hayek did not believe the wealthy deserved their wealth, and that a class of entrepreneurs might as well be created at random. This view is very different from Nietzsche’s position that the strong, like beasts of prey, cannot help being who they are, and that the elite in society were intrinsically powerful. Yet in a way, Hayek’s position is equally elitist, because it excuses the most absurd and even harmful behavior as socially necessary. The point is not a particularly useful one if your goal is to formulate definitions and contrast different thinkers’ work systematically, but it does help explain the pathologies of the wealthy.

Evolving Views on the Rule of Law

Yesterday, while considering the question of under what circumstances a person is justified in calling herself free, I laid out a worst-case scenario for the development of the digital surveillance state in which the intelligence apparatus convinces everyone that it is capable of monitoring their psychological vulnerabilities in detail, reading not only their thoughts, but also their feelings. Such a state might retain the formal features of a democracy, but it would be a totalitarian democracy, in which no one would enjoy liberty in any meaningful sense. It would not be necessary for the government to violate due process in any case to compel our obedience. There would be no disappearances, no expropriation, no show trials. Instead, agents of the state would control us by anticipating our desires and fears, and providing protections and rewards through other channels.

Such a state is certainly feasible, given existing technology. The only people who would be invisible to it would be those who never communicated except in person and via carrier pigeon. (So, in fairness, would be people who used end-to-end encryption, but while I’m hypothesizing, I don’t want to make additional assumptions about the possible limitations of future technology.) Even so, it probably wouldn’t matter if the state were actually capable of monitoring everyone. It would probably be enough if people believed that it was. In ordinary life, the feeling of being watched makes us change our behavior, even if really no one is paying us any attention.

Conversely, if clear rules are established describing under what circumstances a citizen’s communications can be monitored, and if the population has reason to believe that those rules are being followed, then the state’s power will be severely circumscribed, no matter its level of technological sophistication. The rule of law can shield certain areas of thought and conversation from the public eye, allowing individuals to experience true solitude and genuine intimacy — experiences that depend on the confidence that you are alone.

One of the extraordinary hopes I had at the beginning of the Obama administration was that the president might move the country and the world toward respect for the rule of law. I’d like to remind everyone of the existence of this extraordinary document, the National Security Strategy issued in May 2010. At that time, Obama wrote:

We are clear-eyed about the challenge of mobilizing collective action, and the shortfalls of our international system. But America has not succeeded by stepping outside the currents of international cooperation. We have succeeded by steering those currents in the direction of liberty and justice — so that nations thrive by meeting their responsibilities and face consequences when they don’t…
In all that we do, we will advocate for and advance the basic rights upon which our Nation was founded, and which peoples of every race and region have made their own. We promote these values by living them, including our commitment to the rule of law. We will strengthen international norms that protect these rights, and create space and support for those who resist repression.

Later, the document describes a goal of establishing a “rules-based system” of reward and punishment in “multilateral forums,” and pursuing U.S. interests within such forums and with respect for such a system. This was the right strategy at the time, and it remains so now. The rule of law is the supreme U.S. interest. Where it is respected abroad, foreign governments will be sympathetic to our other military and economic interests. A robust system of international law, one that would provide for swift and demonstrably legitimate responses to abuses, is the only system I can imagine that would be adequate to the challenges the next century will pose to the international order. Otherwise, responsible actors will be continually forced into belated, ineffectual, and ad hoc interventions in crises around the world.

Those who think such a system is too much to hope for fail to understand the degree to which the rule of law is a product of culture and of norms, not of institutions. It might be impossible to legislate the rule of law through the United Nations or any other forum, but it is just as difficult to legislate an end to corruption in a country like India. Instead, the goal of U.S. foreign policy should be to strengthen norms of international law and behavior by example. To be sure, there will always be bad actors, but legitimacy is not like a light switch. It is relative, and the more obviously a government’s behavior diverges from norms, the more difficult it will be for that government to persist.

For that reason, if the Obama administration did in fact decide to persuade European countries to force Bolivian President Evo Morales’s aircraft into an unscheduled landing in Vienna earlier this week, the administration made a poor decision. I am not entirely sure what the administration hopes to achieve by capturing Snowden, but it should be clear, based on the White House’s own explicit strategy, that fostering the rule of law and international norms of behavior is the greater priority.

The incident involving Morales’s plane, assuming all the facts have been reported, is an epitome of the administration’s evolving attitudes on the rule of law. Originally, Obama sought Snowden’s extradition strictly through legal channels. When that approach failed, the administration again revealed the shallowness of its commitment to legality.

Nowhere has this been clearer in the administration’s defense of PRISM, the program described in the documents Snowden gave to journalists. Congress explicitly denied funding for a similar program in 2004, but when the executive is granted power to operate in secret, the bureaucracy is able to act unilaterally and therefore outside the rule of law. The National Security Agency’s activities are not legal or illegal. They are extralegal.

I don’t believe this has to be the case. Ezra Klein wrote last week, “At a fundamental level, the tension between keeping secrets and enforcing democratic accountability can’t be resolved.” It may be true that the premises of democracy and intelligence work contradict each other, but intelligence work and the rule of law do not have to be in conflict. The Foreign Intelligence Surveillance Act seems to have successfully controlled the scope of the surveillance apparatus for several decades, and the act could be amended again to provide additional checks. An advocate could be appointed, a lawyer with a clearance who could review intelligence analysis and secretly argue certain cases on behalf of those who would never know that their rights had been violated. Congress could also give less discretion to analysts in Fort Meade by requiring them to demonstrate with a greater degree of confidence that an account belongs to a foreigner before viewing any other information about any messages sent from that account.

Finally, Congress could simply repeal Section 702 altogether, along with other amendments, to restore the system that existed previously, in which agents were required to seek a warrant in each case. It was not an ideal system, but it at least reassured most people that as long as they hadn’t done anything to arouse suspicion, no one would take the trouble to listen in on their conversations. The minimal check on the authority of federal agents kept surveillance within the bounds of the rule of law.

Whether the massive quantity of data available to the state through PRISM has been useful to law enforcement, or how it could ever possibly serve any legitimate purpose, remains unclear. Without intelligence identifying the owner of an account, it is hard to know how an analyst could make sense of the results of a query, and that intelligence would also allow the analyst to request a conventional roving wiretap.

To conclude, it appears unlikely that the agency acquired these new authorities for the sake of our security. Rather, they seem to exist primarily for the sake of private enrichment and personal aggrandizement.

Independence

When I woke up this morning, Aaron Copland’s “Fanfare for the Common Man” was coming out of the radio. The piece puts into music some of the ideas we have about who we are as Americans. It conveys a notion of liberty that perhaps exists only in art and literature, one that seems more and more untenable the more we know about economics and biology. Since this morning, I’ve been thinking about what liberty is, and what the signatories to the Declaration of Independence had in mind when they wrote that it is an inalienable right.

Even if there is no such thing as free will, democracy and the rule of law are still much better than dictatorship. There is such a thing as meaningful autonomy in a political sense. Michael Lynch offers a thought experiment to show why:

Imagine that I could telepathically read all your conscious and unconscious thoughts and feelings — I could know about them in as much detail as you know about them yourself — and further, that you could not, in any way, control my access. You don’t, in other words, share your thoughts with me; I take them. The power I would have over you would of course be immense. Not only could you not hide from me, I would know instantly a great amount about how the outside world affects you, what scares you, what makes you act in the ways you do. And that means I could not only know what you think, I could to a large extent control what you do…
From my perspective, the perspective of the knower — your existence as a distinct person would begin to shrink. Our relationship would be so lopsided that there might cease to be, at least to me, anything subjective about you. As I learn what reactions you will have to stimuli, why you do what you do, you will become like any other object to be manipulated. You would be, as we say, dehumanized.

It may be true that even in a free state, the aims we work toward are chosen for us by our genes, or the market, or God, or some other system much larger than any one of us. Still, we maintain our liberty in at least one sense as long as our own thoughts are opaque to others, as long as we do not become objects of human knowledge. In a totalitarian state, the state’s knowledge of its citizens’ affairs is enough to control them. They become manipulable, like a bacterium or a turbine.

It would be a mistake, needless to say, to think that there is a clear separation between free and totalitarian states. Last month, Beverly Gage described how the Federal Bureau of Investigation under J. Edgar Hoover controlled legislators by suggesting that the bureau knew their secrets:

The FBI compiled background information on members of Congress, with an eye to both past scandals and to political ideology. But the files were probably not as extensive or all-encompassing as people believed them to be. The point was that it didn’t matter: The belief alone was enough to keep most politicians in line, and to keep them voting yes on FBI appropriations.

The National Security Agency under Gen. Keith Alexander has the same power. As long as the agency’s protocols remain substantively secret, and as long as everyone keeps guessing about how much its analysts know, we should expect Alexander to coerce legislators into protecting his agenda.

You might object that the agency does not permit itself to maintain data on U.S. citizens if there isn’t useful information or evidence of a crime, a rule that might appear to prevent blackmail. Yet as we know from McClatchy’s reporting on the administration’s Insider Threat program, anything that a foreign government might use to blackmail or exploit someone in government is important counterintelligence, including debts, extramarital affairs, homosexuality, and mental illness. If that maxim applies to federal employees, it applies equally to lawmakers and ordinary citizens. That is, the country’s spies not only interested in whether we have committed a crime or are communicating with terrorists. They are interested in precisely the things that we really don’t want them to know about, the things that reveal the most about who we are. Reassurances from intelligence and administration officials should not necessarily give any of us confidence that their work does not involve our personal lives. If they are telling the truth, they aren’t doing their job.

Liberty in any sense is inconceivable in a state that keeps an artificial eye on the psychological vulnerabilities of its citizens. Even if they did enjoy universal suffrage and equal protection under the law in such a state, they would be profoundly vulnerable to manipulation. You would have to describe such liberties as merely procedural and nominal. Recall from Hoover’s example that it is isn’t necessary for the state to ever act on its knowledge. Fear and uncertainty are powerful enough without action.

I am not suggesting that we live in such a state today. Moreover, resisting surveillance at every opportunity will not prevent this country from becoming that state. Every government needs to be able to keep secrets, and the only way to protect what we think of as our liberty is to find a way to control and circumscribe governmental secrecy, not to try to eliminate it. That, however, is a problem for another post.