What If the Democratic Response to Snowden Is to Expand Surveillance?

I got distracted reading two pieces this morning. This great Andrew O’Hehir piece, on how those attacking Edward Snowden and Glenn Greenwald ought to consider the lesson of Justice Louis Brandeis’ dissent in Olmstead.

In the famous wiretapping case Olmstead v. United States, argued before the Supreme Court in 1928, Justice Louis Brandeis wrote one of the most influential dissenting opinionsin the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack against Glenn Greenwald and Edward Snowden,including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.

Brandeis’ understanding of the problems posed by a government that could spy on its own citizens without any practical limits was so far-sighted as to seem uncanny. (We’ll get to that.) But it was his conclusion that produced a flight of memorable rhetoric from one of the most eloquent stylists ever to sit on the federal bench. Government and its officers, Brandeis argued, must be held to the same rules and laws that command individual citizens. Once you start making special rules for the rulers and their police – for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years – you undermine the rule of law and the principles of democracy.

“Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

And this more problematic Eben Moglen piece talking about how Snowden revealed a threat to democracy we must now respond to.

So [Snowden] did what it takes great courage to do in the presence of what you believe to be radical injustice. He wasn’t first, he won’t be last, but he sacrificed his life as he knew it to tell us things we needed to know. Snowden committed espionage on behalf of the human race. He knew the price, he knew the reason. But as he said, only the American people could decide, by their response, whether sacrificing his life was worth it.

So our most important effort is to understand the message: to understand its context, purpose, and meaning, and to experience the consequences of having received the communication.

Even once we have understood, it will be difficult to judge Snowden, because there is always much to say on both sides when someone is greatly right too soon.

I raise them in tandem here because both address the threat of spying to something called democracy. And the second piece raises it amid the context of American Empire (he compares the US to the Roman decline into slavery).

I raise them here for two reasons.

First, because neither directly notes that Snowden claimed he leaked the documents to give us a choice, the “chance to determine if it should change itself.”

“For me, in terms of personal satisfaction, the mission’s already accomplished,” he said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself.”

“All I wanted was for the public to be able to have a say in how they are governed,” he said. “That is a milestone we left a long time ago. Right now, all we are looking at are stretch goals.”

Snowden, at least, claims to have contemplated the possibility that, given a choice, we won’t change how we’re governed.

And neither O’Hehir nor Moglen contemplates the state we’re currently in, in which what we call democracy is choosing to expand surveillance in response to Snowden’s disclosures.

Admittedly, the response to Snowden is not limited to HR 3361. I have long thought a more effective response might (or might not!) be found in courts — that if, if the legal process does not get pre-empted by legislation. I have long thought the pressure on Internet companies would be one of the most powerful engines of change, not our failed democratic process.

But as far as Congress is concerned, our stunted legislative process has started down the road of expanding surveillance in response to Edward Snowden.

And that’s where I find Moglen useful but also problematic.

He notes that the surveillance before us is not just part of domestic control (indeed, he actually pays less attention to the victims of domestic surveillance than I might have, but his is ultimately a technical argument), but also of Empire.

While I don’t think it’s the primary reason driving the democratic response to Snowden to increase surveillance (I think that also stems from the Deep State’s power and the influence of money on Congress, though many of the surveillance supporters in Congress are also supporting a certain model of US power), I think far too many people act on surveillance out of either explicit or implicit beliefs about the role of US hegemony.

There are some very rational self-interested reasons for Americans to embrace surveillance.

For the average American, there’s the pride that comes from living in the most powerful country in history, all the more so now that that power is under attack, and perhaps the belief that “Us” have a duty to take it to “Them” who currently threaten our power. And while most won’t acknowledge it, even the declining American standard of living still relies on our position atop the world power structure. We get cheap goods because America is the hegemonic power.

To the extent that spying on the rest of the world serves to shore up our hegemonic position then, the average American might well have reason to embrace the spying, because it keeps them in flat screen TVs.

But that privilege is just enjoyed by some in America. Moglen, tellingly, talks a lot about slavery but says nothing about Jim Crow or the other instruments of domestic oppression that have long used authoritarian measures against targeted populations to protect white male power. American history looked at not against the history of a slavery that is past, but rather against the continuity of history in which some people — usually poor and brown and/or female — don’t participate in the American “liberty” and “privacy” Moglen celebrates, our spying on the rest of the world is more of the same, a difference in reach but not in kind. Our war on drugs and war on terror spying domestically is of a piece with our dragnet internationally, if thus far more circumscribed by law (but that law is expanding and that will serve existing structures of power!).

But there’s another reason Americans — those of the Michael Kinsley and George Packer class — might embrace surveillance. That’s the notion that American hegemony is, for all its warts, the least bad power out there. I suspect Kinsley and (to a lesser extent) Packer would go further, saying that American power is affirmatively good for the rest of the world. And so we must use whatever it takes to sustain that power.

It sounds stupid when I say it that way. I’m definitely oversimplifying the thought process involved. Still, it is a good faith claim: that if the US curtails its omnipresent dragnet and China instead becomes the dominant world power (or, just as likely, global order will dissolve into chaos), we’ll all be worse off.

I do think there’s something to this belief, though it suppresses the other alternative — that the US could use this moment to improve the basis from which US exercises its hegemony rather than accept the increasingly coercive exercise of our power — or better yet use the twilight of our hegemony to embrace something more fair (and also something more likely to adequately respond to the global threat of climate change). But I do believe those who claim US hegemony serves the rest of the world believe it fairly uncritically.

One more thing. Those who believe that American power is affirmatively benign power may be inclined to think the old ways of ensuring that power — which includes a docile press — are justified. As much as journalism embraced an adversarial self-image after Watergate, the fundamentally complicit role of journalism really didn’t change for most. Thus, there remains a culture of journalism in which it was justified to tell stories to the American people — and the rest of the world — to sustain American power.

One of those stories, for example, is the narrative of freedom that Moglen embraces.

That is, for those who believe it is worth doing whatever it takes to sustain the purportedly benign American hegemon, it would be consistent to also believe that journalists must also do whatever it takes to sustain purportedly benign system of (white male) power domestically, which we call democracy but which doesn’t actually serve the needs of average Americans.

And for better or worse, those who embrace that power structure, either domestically and/or internationally, expanding surveillance is rational, so long as you ignore the collateral damage.

Update: Tempered critique of Packer because I agree he’s not embracing this journalist as narrative teller as much.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

30 replies
  1. wallace says:

    quote”And for better or worse, those who embrace that power structure, either domestically and/or internationally, expanding surveillance is rational, so long as you ignore the collateral damage.”unquote

    So long as you ignore the collateral damage… , like this…

    http://cryptome.org/2014-info/memorial-day/memorial-day-2014.htm

    Those that embrace Empire need to have their faces shoved in a pool of blood of it’s victims…both domestic and foreign.

  2. Don Bacon says:

    **Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.**
    .
    One could also argue that the government’s blind use of lethal force overseas leads to comparable ends domestically, with gun violence for example.
    .
    Don’t like somebody over in that neighborhood? Just ‘off’ him.
    .
    It worked for Hillary: We came, we saw, he died.
    .
    Gun control? Start with the Feds.

  3. orionATL says:

    a thoughtful post.

    this however took me aback:

    “…if the US curtails its omnipresent dragnet and China instead becomes the dominant world power (or, just as likely, global order will dissolve into chaos), we’ll all be worse off…”

    “the omnipresent dragnet” is all that prevents china from becoming the dominant world power?

    as an ecercise in thinking this argument does no harm.

    i cannot imagine, though, that “the dragnet” is capable of doing that.

    further, i doubt that 95% of the dragnet is even focused on china (there was a map for this somewhere).

    i can think of a number of events that could dismember china internally beginning with its first serious recession or a depression.

    political conflict arising out of economic distress or out of distaste for china’s current “shut up and get rich” authoritarian government would curtail any run to world dominance.

    it’s not a certainty that china operates from an achieving-world-dominance viewpoint. they may operate defensively, which certainly makes sense given the u.s.’s arbitrary and coercive use of its power.

    the way i see things, bringing in issues outside of american domestic constitututional (and international “human rights”) greatly diffuses the clarity and focus on what desparately needs changing now – that the u.s. is becoming, an unbalanced government-and-corporate state with the attendant loss of the u.s. as a model of representative democracy for other nations to consider.

    • P J Evans says:

      It’s that wonderful unquestioned belief that so many in politics have: that the US is necessarily the Great World Leader and all others should follow its lead.
      Which is, as ew is not explicitly saying, a load of bull.

    • orionATL says:

      i got a bit off track with the final sentence above.

      what needs to happen right now in the u.s. is for the nation to return to the siuation where police and prosecutorial power are severely constrained by vigorously enforced bill of rights guarantees, by extremely strong whistleblower protection law, and by extremely strong police and prosecutorial misconduct law.

      the core problem now is a deceitful u.s. government which is allowed and eager to ignore 1st and 4th amendment guarantees to citizens in favor of upping the odds on arrest and conviction.

      one of the major missing pieces in the current usa freedumber act is any effort to balance greatly enlarged domestic policing spying programs with strong domestic whistleblower encouragement and protection law.

      if this trend continues then at some time in the not too distant future it will be the u.s., not china, that is a fearful, gouging, demanding danger to the world.

    • emptywheel says:

      Empires remain empires by retaining a privileged place in the world’s communication system. The Internet is ours. If we lose that privilege, we won’t retain our hegemonic position.

      • emptywheel says:

        Adding, I think that’s a part of what goes into being a world empire. Not the only think. But a necessary part of it.

      • rkilowattt says:

        @ emptywheel 18
        ..”a privileged place in the world’s communication system…
        Isn’t that a working definition Of “insider” and “inside knowledge”?

        • emptywheel says:

          I didn’t mean it as such. I meant it as a strategic good. They may not be reading everything — and therefore having insider knowledge on it. But they have access to it directly and far more ease getting to it. As well as a greater ability (dissipating quickly in case of the US) of ensuring secrecy of their own comms.

          • rkilowatt says:

            “a privileged place in the world’s communication system”

            “Privilege” is derived from “private law”.

            A position at a crossroads of communication lines is a favored one for ill or good. Modern technology has enabled ubiquitous access as a substitute for placement at a crossroads.

            “Insider” and “inside knowledge”position will always be an invitation for abuse of trust, such as riskless-investment for profit. There is overwhelming temptation.

            This is all in addition to what you meant. And a fuller understanding is , I trust, what you value.

      • orionATL says:

        thanks for the response. it’s an interesting way to look at world-dominating power.

        does control of communications systems mean control of cables, routers, modems, and corporations?

        or does it mean control of styles and language of communications (as with english language in science today)?

        or both.?

        why is electronic spying (“the dragnet”) necessary to retain control of world communications systems assuming such control is necessary for empire to be born or to thrive?

        how much more imortant is it to the maintenance of empire to have a galaxy of co-operating culturally compatible nations – u.s., u.k. and commonwealth, scandinavian, major and minor european, parts of south and east asia?

        is becoming an empire even a matter of choice? or is it rather the precipitate of a chain of large-scale social interactions, e.g., the u.s., europe, and “the rest of the world” from 1900-1995?

        is control of communications, with or without electronic spying, just a part of that residue, once the major dynamic forces (war, culture, resources acquisition) have ground to a halt (e.g., with the dissolution of the soviet union).

  4. Ben Franklin says:

    It’s a simplification, but two groups of Americans can be sectored; the ‘haves’ and the ‘havenots’. As anyone who follows this story with some time investment knows, it takes a lot of research/reading to keep up. When you are working two part-time jobs and trying to make a living, there is very little time. The ‘haves’ are trying to keep what they have, or accumulating more. Being protective of the status quo is necessary for stable markets and brisk sales of your products.

    Americans may make the young man’s personal sacrifice worthwhile and the trend in public opinion toward surveillance is headed the right way, but the methodology Security forces for quelling such angst can be, and is being gamed.

    Presstitutes making their bones off the nonsense that Snowden is a Sino/Soviet spy and traitor comprise the ‘haves’, especially as they want a Shield Law to pander to a select group of peers.

  5. Don Bacon says:

    Many observers believe that Chinese think like Americans think, in terms of personal and national dominance in human affairs, but that’s not true. China generally follows a more cooperative model, with some exceptions for neighboring countries (a practice shared with the US). Chinese basically just don’t think like Americans, who are more competitive.
    .
    In international affairs China has an economic policy which includes non-interference in other countries’ affairs. The US has a military-economic policy that does involve interference. China would probably never have “combatant commands” responsible for the whole world, with many overseas bases, as the US does.
    .
    The US even interferes in China’s domestic affairs with its financial support for dissidents in China’s Xinjiang Province, and in Tibet.
    .
    So “dominant world power” has a different meaning for China than for the US. Work with others to get rich.
    .
    Even the US has put more reliance on its financial power recently through refinement of its banking influence to affect economic sanctions on other countries. Call it economic aggression, economic dominance. But that too is slipping away as the larger competitors withdraw from the dollar.

  6. Robert Peplin says:

    Could it be that China’s ascendency (and the US’s descendency) was aided by capital’s flight to and embrace of the former? Large corporations found no qualms regarding a totalitarian regime and its surveillance state as long as our labor and pollution problems could be exported to the PROC post-Tiananmen Square. Where were all of the conservative ideologues when this transfer was occurring? The underlying thought here is that control + profits > democracy for what are now de facto fascist governments who have invited corporations into our halls. Little else seems to matter in the race toward dwindling resources. Last, one could argue that slavery has never left us in that most of us are “wage slaves”, dependent on the very corporations that control just about everything, and everyone, during these times, especially our privacy. All in the name of making a buck. Maybe our only freedom recently has been the ability to buy lots of cheap crap we really don’t need…

  7. bsbafflesbrains says:

    eminent liberal journalists Michael Kinsley

    Liberal as defined by the M$M. Liberal as defined by being compared to Foster Freiss. Liberal as defined by the cocktail party set in NY that thinks he is liberal because he is not upset that poor people have a flat screen TV AND a microwave.

  8. seedeevee says:

    “instruments of domestic oppression that have long used authoritarian measures against targeted populations to protect white male power”

    Making arguments from the racist and misandrist point of view demeans the argument against authoritarians.

  9. anonymous says:

    american nsa resistance: 01 boycott american internet/telecom sector 02 use free software, encrypt all comms 03 acquire weapons for self defense

    • wallace says:

      quote”american nsa resistance: 01 boycott american internet/telecom sector 02 use free software, encrypt all comms 03 …acquire weapons for self defense.” unquote

      Careful anonymous, lest the emptywheel forum monitors label you a tin foil hat wearing gun nut. Indeed, some people here even go so far as to plead with emptywheel to stop “this permissive approach to destructive commenters”, when people post pro-gun comments . In fact, they’ll claim you possess..quote “classic troll behavior – commentary that is ideologically extreme, monomaniacle, unusually hostile in tone, and disruptive of any focused chain of comments others might like to make.”unquote

      Of course…grain of salt comes to mind too.

  10. David Tarrell says:

    One of the best posts I’ve ever seen, anywhere on the internet. I’ll be thinking about this for years.

  11. Don Bacon says:

    A reliance upon the government-provided Constitution as a source of our rights, the 4th amendment in this case, inevitably leads to the removal of those rights. What the government may giveth, it may also taketh.
    .
    If on the other hand one believes that our rights are inherent as stated in the Declaration of Independence, then we need not be occupied by the false idea that the government provides us our rights, which of course it doesn’t.
    .
    The Declaration of Independence, 1776, recognizes that people have certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
    .
    The purpose of the Constitution’s first ten amendments is to limit the government, not to provide rights.
    .
    During the Constitutional Convention and before the Constitution was ratified by the states, there were many concerns that the federal government would be too powerful under the Constitution. The two major sides of this argument were the Federalists and the Anti-Federalists. The Anti-Federalists believed that the Bill of Rights was necessary to protect people from a strong central government by specifically listing some important rights of citizens. Amendment IX makes clear that this list of rights is not inclusive of all rights retained by the people. — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
    .
    Bill of Rights was added to the Constitution as a compromise between the Federalists and the Anti-Federalists. Through this compromise, ratification of the Constitution by the states was achieved.
    .
    The idea of adding a bill of rights to the Constitution was originally controversial. Alexander Hamilton, in Federalist No. 84, argued against a “Bill of Rights,” asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and, therefore, that protections were unnecessary: “Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.”

  12. bevin says:

    “…Kinsley and (to a lesser extent) Packer would go further, saying that American power is affirmatively good for the rest of the world. And so we must use whatever it takes to sustain that power…”

    Presumably this belief would be grounded in assertions that “The US respects civil liberties…the US constitution guarantees individual rights and due process…”and so on.

    Such assertions are manifestly untrue: the US government is a malign influence throughout the world, a sponsor of assassins and a subverter of popular power.

    The sad truth is that Packer et al fall into the category of those whose opinions are shaped by those who sign their pay cheques. They hold irrational beliefs because it is profitable to do so.

  13. [email protected] says:

    I really haven’t seen much on the philosophy of the internet. Much about the panopticon, much on existentialism, much on the post-modernity of it, much on the pyschology of the users, etc.
    But the thing is, and this is a kind of odd example, I recall a woman at work explaining human eyes, (try not to laugh) stating they were the “only exposed part of the human brain” and while it kind of creeped me out, I wonder if the same thing can’t be said for the internet. And even more so, as what is revealed is the memory, cognitive process, strength and weakness of any given person’s character, something not even a spouse or family member would be particularly privy to. Then move on to the danger of mistakes in interpretation. I see the internet as a kind of sidewalk in a town, and explore it. It does not make me the sidewalk, or the billboards that I read nor stumble across. In short, observing an anarchist’s barber shop pole does not make me anarchist, a customer, or the owner. And that’s the problem with surveillance. It assumes you are all three. It’s also why profiling is on par with phrenology. It’s why they don’t catch the bad guys, and it’s why they don’t catch real terrorists. At this point, LONG BEFORE SNOWDEN they knew not to be on, nor visit the internet!!! Needless to say, being two streets away from the pole, yet by proximity still subject to losing all your privacy for years if not forever really is grotesqueiy inefficient. Setting aside the framer’s work product, the cost of such a fiction is in itself a crime, we don’t see results (outside of desperate stings manufacturing convictions of simple-minded fools) because IT DOESNT WORK. It’s a weird institutional voyeurism, appealing to sex and power addictions of patriarchy, and nothing more.

  14. [email protected] says:

    Derp! Bad post. I wrote:

    “At this point, LONG BEFORE SNOWDEN they knew not to be on, nor visit the internet!!! Needless to say, being two streets away from the pole, yet by proximity still subject to losing all your privacy for years if not forever really is grotesqueiy inefficient.

    meant “grotesquely abusive” And, the point I mentioned about the philosophy of the internet was meant to wrap up as that their is no ethic-based philosophy governing anything about it. Maybe that pheasant was too big for my daisy. Working on it!

  15. ess emm says:

    What If the Democratic Response to Snowden Is to Expand Surveillance?

    I am reminded of Sartre’s chilling remark:

    Tomorrow, after my death, some men may decide to establish Fascism, and the others may be so cowardly or slack as to let them do so. If so Fascism will then be the truth of man, and so much the worse for us.

    It’s important you highlighted Gillen & Page’s paper. It’s crucial evidence showing that if the average American is slack, and leaves politics to the economic elites and organized business interests, then we’ll get crushed.

    And Kinsley is a cowardly, boot-licking toady.

    Spot-on analysis, ew. Thanks.

  16. joe shikspack says:

    Excellent analysis! Thank you.

    Another thing to consider, is, if America loses its position as global hegemon, does that mean that we can’t all drive hummers, live in suburbia and look down on everybody else as we disproportionately contribute to making the earth uninhabitable by humans?

    It strikes me that it wouldn’t take a lot of media prodding to get the average (disinformed) American to perceive a link between pervasive spying and their own phoney-baloney jobs and prosperity.

  17. sou-shep says:

    By the way, Ms. Wheeler,

    I’d like to say that I noticed this particular piece had an amazing amount of grace running throughout that really made it a pleasure to read, to say nothing of the content. thank you

  18. earlofhuntingdon says:

    The record, though one wouldn’t know it by reading, say, Texas schoolbooks, does not demonstrate that American power projected abroad is an unalloyed good. It has frequently brought its opposite, especially to those parts of the world that have resources we covet or who imagine a world of diversity rather than fearful silent obedience

  19. Isolato says:

    I think it is important to remember that the real purpose of the surveillance state is not to catch terrorists (it hasn’t) but to deter “thought crime” here at home. In that sense Edward Snowden has done the NSA a favor. His revelations spread the fear and anxiety that are the agents of oppression.

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