Homeland Security Watch

News and analysis of critical issues in homeland security

June 10, 2013

I am, after all, a republican

Filed under: Legal Issues,Media,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on June 10, 2013

Glenn Greenwald and his colleagues at The Guardian continue to demonstrate the power of  the old school “mainstream media” to set an agenda.   Now we are hearing from Greenwald’s NSA source who explains, “I’m willing to sacrifice all… because I can’t in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building.”

And so, perhaps inevitably, a complicated issue of ethics and politics of the highest order will be personalized and reduced to melodrama.  Which, at least, gives me permission to tell my story.

The only claim I have on anything truly scholarly is a sort of silver-age knowledge of the constitution of late-republican Rome.  This involves the period from about 133 BC to the rise of Augustus (27 BC) when constitutional structures imploded and produced the Empire.  As a young man I read entirely too much Cicero and have carried the burden into old age.  It is a story of freedom thoughtlessly and selfishly sacrificed.

As a result the claims of a “unitary executive” by various players in the George W. Bush administration caused me considerable concern.  A life-long Republican (capital R) I had supported John McCain in 2000 and expected to do so again in 2008.  But in conversation with his national security team (in which homeland security was entirely subsumed) I became increasingly alarmed.

It was not so much what they intended to do.  It was how and why they were going to do it.   The world had, it seemed to them, become too dangerous for due process.  It depended on a few good men (mostly good, mostly men) to do what was needed to defend the nation against attack.   Further, the nation they sought to defend was an abstraction of power and interests that did not, listening carefully, seem to have much at all to do with the Constitution.

So in early 2008 I decided to work for the once-upon-a-time lecturer on constitutional law at the University of Chicago, who — it seemed to me at the time — combined a kind of tough Niebuhrian realism with a disciplined self-restraint that reflected both the Founders and a good slice of Cicero.

Like our NSA contractor/whistleblower/hero/traitor — Mr. Snowden — I suffered the consequences of my choice.  My wife has made the point that if we had given the campaign what we lost because we joined the campaign I might have at least been made ambassador to some obscure corner of the world.  More to the point, a lifetime of personal relationships and professional networks was largely sacrificed.  Even my Dad was disappointed.

Since his election President Obama has been very tough on terrorism or, as he prefers, “violent extremism”.  Several times he has exceeded what I perceive to be his appropriate constitutional role.  Especially in these cases the President has tended to argue that the controversial decision is an exception-that-proves-the-rule.  It may be little more than a fig leaf, but I have appreciated the nod to constitutional decorum even as I recall Augustus was a master of the technique.

Potentially more substantive, the President’s May 23 National Defense University speech called for a more extensive legal framework  that would explicitly limit his own authority and that of future executives.  But other than the classified PPD and other gracious acts of executive self-restraint will anything really change? Right now the speech is as likely to become a footnote — another fig leaf — in future explanations of the eventual collapse of our Constitution under conditions of perpetual war.

In this context I have found the revelations of NSA spying on you and me to be cause for considerable celebration.

Based on what can be known today it would seem that:

  • The spying has been undertaken in accordance with the laws and Congressional oversight — such as it is — has been consistently facilitated.
  • The spying has been undertaken only after judicial review and authorization of narrowly written warrants.
  • The spying has been structured and organized specifically to limit when and how the information is used consistent with the judicial warrants and is extended only with further judicial review.
  • The spying has been exposed by the unofficial fourth branch for public consideration.
  • The spying has caused political enemies who sometimes seem to personally despise each other to share the same or proximate podiums to not only explain the due process exercised in this case but the mysteries of meta-data as well.

What a world!

I regret living in an age when so much of what I do is tracked — and even more is trackable — by a whole host of players.  This is an issue Cicero did not need to consider. It is a temptation to which neither Julius nor Augustus Caesar could succumb.   But this is our reality.  It is not a question of being tracked.  It is an issue of how and why… and what will be done with the results.

And in dealing with the wicked problem of terrorism and the temptation of digital tracking, what we are seeing unfold is the way our Constitution — formal and informal — is supposed to work.  We have elected agents to make judgments on our behalf.  Thanks to Madison and others we have structured our Constitution so that these agents compete with each other.  Through this competition of branches and parties and people a self-restraining, privacy- protecting, freedom-preserving process is cobbled together. Thanks to the First Amendment to our Constitution we have empowered informal agents to hold our elected agents accountable.

As a result, we are given the opportunity to consider difficult issues and to decide how our agents are behaving regarding these issues and whether or not we are prepared to allow them to continue to be our agents.  For me this is the nation.  This is what is worth defending.

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13 Comments »

Comment by JOHN FASS MORTON

June 10, 2013 @ 10:13 am

I see several threads converging, further accelerated by the Guardian revelations, which leads me to make three points among many I could make as we wade through this mess.

1. Without fear-mongering, I think we need to approach the issue of privacy in the Internet age by making a distinction between privacy and anonymity. Privacy is constitutionally guaranteed. Anonymity is not. In the early days of the Republic, we were not anonymous. We knew who were the village idiots and who were the folks who never repaid their debts. And that was a good thing. With urbanization came anonymity, and that was a good thing for those who wanted to lead secret lives or escape parochialism and gossip. But I don’t think we can say that is constitutionally guaranteed. I think considering this distinction could give us clarity as we wrestle with the civil liberties questions here.

2. The Roman roads kept the Roman Empire together. America owed its coalescence to the railroad and postal system and the telegraph, telephone and road systems. Now we can say it’s the Internet. If we can accept what truth there may be in that overstatement, then we need to update American governance as we did (for better or worse) when we created the Fed and the national security system. It needs to be done by statute. And it is a knotty problem because of the roll the private sector plays in the realm of cyberspace. Yet recall: the railroads were private as were the banks and Wall Street. Cyberspace security/resilience and governance are critical to the future of America. And all of us need to get serious about it. To that extent, we should all move forward now that Eric Snowden has done what he has done (however we might feel about the rightness or wrongness of his actions).

3. As some of you may know, I am very much a proponent of the responsibility-to-provide information sharing culture that came with ICD 501 in 2009 and the work of PM-ISE to connect dots to maximize the ability of information users and providers to perform their missions, be they counter-terrorism, public health, emergency response or law enforcement. Last Tuesday, I gave an address to the Security Industry Association HLS Summit here in DC to that effect. But now I am equally troubled by the thought that such a capability can be used by a political party whose members may be in government positions to harass political opponents, thwart the exercise of freedom of speech and assembly, perhaps even blackmail, and so forth. In effect, that is what the IRS revelations are suggesting has happened or at some point could happen. Let me be clear: this capability could be in the hands of either or any political party. It could be in the hands actually of any entity, e.g., a corporate entity involved in some particularly vital rivalry with competitors. That gets us to 1984 and Fahrenheit 451. Snowden has bestowed on us a new term: turnkey tyranny. Hm. Not good. We gotta deal with this.

Comment by William R. Cumming

June 10, 2013 @ 12:09 pm

AND PHIL WHO IS OUR CICERO OR SULLA?

Comment by Philip J. Palin

June 10, 2013 @ 12:54 pm

Bill, I don’t recognize any latter day Cicero. In any case, Cicero failed. I see several wanna-be Sullas and surely he was a Great Man. But I suggest we can see in how Sulla succeeded seeds of the Roman Republic’s ultimate constitutional collapse… especially in the increasingly influential cult of the Great Man.

John, I appreciate your convergences. I wonder if another aspect of convergence is the influence of passive banality (IRS) and active banality (Mr. Snowden)? Each have aspects of an innocent — or at least non-self-critical — mindlessness. Both are bad. But there is something about the active version that can be much more destructive. At the heart of your warning, as I read it, is the threat that emerges when such banality is hitched to a particular purpose.

Comment by William R. Cumming

June 10, 2013 @ 2:00 pm

Phil! You get my point. Few Cicero wannabes. Many Sulla wannabes. Proscribed your political enemies.

Comment by JOHN FASS MORTON

June 10, 2013 @ 2:00 pm

Yes. Exactly–i.e., one that is not purely to protect and defend the Constitution against all enemies foreign and domestic. That should be easy re ISE in the IC and the national security system (but it isn’t).

But what about how the ISE is used by the political patronage system in the non-national security departments and agencies (not to mention the regulatory agencies) such as Interior, Commerce, the IRS and a host of others that have much more direct interface with citizens re their life, liberty and pursuit of happiness?

Comment by JOHN FASS MORTON

June 10, 2013 @ 2:04 pm

Oh, and Phil, per chance, is your use of the word banality intentional, in that it connotes a reference to Arendt?

Comment by Philip J. Palin

June 10, 2013 @ 3:45 pm

Post-Eichmann can the word be used at all without hearing an echo of Arendt? But my meaning is, perhaps, a bit different. Arendt used banal to suggest unthinking or the inability to think clearly. My meaning is closer to thinking that involves an active avoidance of self-critique. When this unfolds into self-aggrandizement and self-righteousness we at least have melodrama. Banality is not far behind. I don’t think evil is always a fellow-traveler, but if all of this is combined with a persistent sense of victimization or demonization then evil is usually an outcome.

Comment by JOHN FASS MORTON

June 10, 2013 @ 4:31 pm

I hope not, Phil. I have long been troubled by the worsening tone of comments to almost any on-line story nowadays. That development supports your point. It suggests the barbarians are within the gates, among us and perhaps we ourselves. We gotta get a grip.

Comment by William R. Cumming

June 10, 2013 @ 6:48 pm

Civility should be the watchword! Unfortuantely is not!

Comment by Christopher Tingus

June 10, 2013 @ 8:22 pm

Wikipedia:

The Politics of Aristotle viewed citizenship as consisting, not of political rights, but rather of political duties. Citizens were expected to put their private lives and interests aside and serve the state in accordance with duties defined by the law” –

In the words of Samuel Adams (1775) :

No People will tamely surrender their Liberties, nor can they be easily subdued, when knowledge is wide spread and Virtue is preserved. On the Contrary, when People are universally ignorant, and debauched in their manners, they will sink under their own weight without Aid of foreign invaders” –

While we love our great Republic and ‘ol Glory and our Judeo-Christan values and Constitution and are obligated to stand forthright with those slaughtered and so willingly left behind at the “Benghazi Massacre” and We should demand that the White House Doors be Reopened for Our Kids Deserve Better, while the majority have more and more distrust those we “entrust” by precious vote and hope they have the veracity we believe the public servant must have…the recent IRS scandal and misuse of information causes much consternation for many, though as A natural born American of Hellenic ancestry (Spartan), I have always believed the folks at NSA are most patriotic and seek to pursue only those whose intent in far contrary to the civilized way, pursuing those so willing to intentionally harm another….

I believe we have a government of checks and balances and we must retain such and expect non-partisan and commitment to truth to enable our nation and its individual freedoms and ambitions to prosper. As a pro gun advocate in the midst of Kennedy country, I say, “Hold your muskets high…for all lawful purpose” and I say that the NSA’s expansion in facilities and reach into the electronic age must be trusted, however affording all proper rights as citizens until an individual is proven in a court of law to have conducted himself/herself as guilty.

Civility and character and the pursuit of practical reason must be adhered to and when brought to public view, public discourse should pursue and I believe the NSA must have safeguards to assure all that information acquired will Not be abused as we recently have heard by the IRS’ announcement that specific citizens and group were targeted.

Anyways, another 21st century interesting debate for sure….

Christopher Tingus
chris.tingus@gmail.com
Open the White House Doors Now – Our Kids Deserve Better -

Comment by Philip J. Palin

June 11, 2013 @ 9:24 am

John and Bill

Overnight I was thinking more about our Roman Republic analogy. It has long seemed to me that the fundamental problem was not the emergence of would-be tyrants (they had always been around) but the hollowing out of Rome’s varied legislatures.

As long as Rome was a city-state and even when it was a major regional power, the various legislative bodies operated as effective feedback mechanisms within the systems of systems, allowing the State to adapt to changing circumstances. But increasingly over the first century BC the feedback loops were seriously compromised. By the time of Augustus only the Senate survived as anything like an effective node.

With the failure of legislative feedback functions, there was an increasing tendency for the system to spawn a control node, which from Sulla on was achieved through different forms of dictatorship.

If this prior case has any analogy to our situation, we should not be as concerned with an Imperial Presidency as we should be with a weakening of Congress and, perhaps, the States. It is diversification of feedback mechanisms that best ensures resilience.

Reading this over, I think this may be just another way of saying what John has often advocated.

Comment by JOHN FASS MORTON

June 11, 2013 @ 3:21 pm

Phil, the node you are focusing on with this analogy is the legislative branch, right? Then you would add the Supreme Court so that the checks and balances serve to provide the feedback mechanisms to best ensure resilience, right? You are saying that the legislative branch has atrophied for reasons we all can list. I agree with this, I think.

But my case, at bottom, is based on the federalism part of our Federal Republic. The feedback mechanism which I say has atrophied is the responsible powers and authorities of the states and local jurisdictions which share layers of sovereignty over a common territory and people. Thus, the nodes are many, potentially, and thus in a governance that returns our Federal Republic to its origins we would gain a decentralized resilience. What we have now is a single point of failure in so many ways. My case argues that the Progressive-era model that characterized the industrial, 20th century with a federal-centric Washington must give way to a network-federal model for information-age, 21st century America. But this opens a huge line of discussion well beyond the present one we are having on the Guardian leaks.

Pingback by Homeland Security Watch » Congressional prospects for NSA operations

July 26, 2013 @ 5:41 am

[...] I explained in an early June post, I have mostly been reassured by the controversy over NSA domestic intelligence gathering.  So far [...]

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