In response to the Snowden-generated news yesterday about warrantless NSA penetration of Google and Yahoo data services—as opposed to getting information from those companies via subpoena and FISA court order:
1. From a reader whose background I know and who asks to be identified as a "national-security professional."
I obviously can't be quoted by name on this ... and indeed, since this email is being read (Hi guys!), I can probably get fired just for sending it, but let me just stress how shocking these NSA revelations are.
Look, I'm not a shrinking violet. I work for DoD. I support much of the war on terror. Some of these assholes out there just need killing. And gathering info on them that allows us to schwhack them is okay with me.
But there is law. And my view is that you have two choices. Either you change the law openly, publicly, or if that is impossible and you consider violating the law imperative, then you make a claim of "exceptional illegality." The later is a tough case, but the best example is torture. I support the torture of Khalid Sheik Mohammed. I do not support the claim that such torture is lawful. But if I had been the responsible official, I would have ordered it and thrown myself on the mercy of the court.
But the thing about the NSA revelations is that this isn't exceptional illegality. It is routine, somehow justified by legal opinions written by John Yoo-style hacks.
And worse, it is so routine that 29 y/o contractors have access to it.
The issue isn't so much that we've expanded the national security in response to perceived threats, but rather than doing so has become so unexceptional that it is routine, widely known, and the information widely (though not publicly) available.
At the risk of Godwining the email, this is the essence of the "banality of evil" in the precise Arendtian sense of the term.
2. From our friend Mike Lofgren, long-time Republican congressional aide and author of The Party Is Over.
There are probably three major alternative explanations to Obama’s actions with respect to the NSA. I list them in ascending order of plausibility:
1. As you say, Obama’s behavior could “suggest that he doesn’t grasp [the gravity of the situation] as clearly as he should. Or recognize the lasting stain it threatens to leave on his record.” This despite his having taught constitutional law, having campaigned against such NSA abuses, and despite his own recent statements regarding the need for the war on terrorism to end.
2. The Intelligence-Industrial Complex has grown so powerful and pervasive that it constitutes a state within a state. This would be consistent with Obama’s supposedly not having been briefed for nearly five years about intelligence operations against allied leaders. The implications of this alternative are substantial, to say the least.
3. Consistent with unitary executive theory as well as the formal chain of command, Obama really is in charge and knows exactly what he is doing. Accordingly, his not having been briefed on potentially embarrassing details of ongoing operations is consistent with the need for “plausible deniability,” a policy which has been more-or-less observed by presidents since the Eisenhower administration. His statements on civil liberties are conscious political signals to keep his base on board, and are common with sitting presidents.
At some point it is wise to ascribe adult levels of understanding to the principal actors in this drama, no matter how impenetrable their deeper motives.
3. From a reader in Texas, on the ratchet of security as it affects presidents, citizens, the press, and the military-security-industrial complex.
President Eisenhower—himself a former general—once gave a prescient speech warning about the dangers our military-industrial complex poses to democratic governance. While the Cold War and the "War on Terror" are different in many ways, they are similar in some important respects. And there are others in which our current situation—and President Obama's in particular—is arguably much worse than in the Cold War.
First the similarities:
1. In both the Cold War and the War on Terror, those charged with assessing the risk we face are the same ones—institutionally and personally—who will be blamed for underestimating it. They are also the ones who benefit - both institutionally and personally—by overstating the dangers. Over many years, well-meaning national-security planners can become so steeped in their own Kool-Aid that the discrepancies between actual risks and those they warn about can become quite large. After the Cold War ended, for example, we were genuinely surprised by how weak the Soviet Union had become. [2...]3. There is little upside—and great downside—for a politician who can be plausibly cast as "weak" or a comfort to the enemy. While the War on Terror is not like other wars, no reasonable person argues that the group who brought down the World Trade Center is not an enemy in every sense of the word.
Now consider these ways in which our current "national-security complex" is more dangerous to democratic survival, and more difficult for President Obama to roll back, than in times past:
1. The national-security complex was charged after 9-11 with this credo: "Never Again." This is a mission so absolute that it permits no cost-benefit analysis of any kind.
2. Throughout the Cold War we understood that the enemy was roughly as afraid of being wiped out by nuclear weapons as we were—hence the "mutually assured destruction" doctrine ... Deterrence does not work well against terrorists.
3. The War on Terror can have no logical ending because there can be no Gorbachev who can credibly surrender. We can never be sure that any leader speaks for all terrorists. And it only takes one determined terrorist to do immense damage.
4. The surveillance-state apparatus—which as you point out is the greater danger to democratic survival than the direct casualties from any act of terrorist violence—creates a chilling effect on the very sort of democratic activity that is prerequisite to its dismantling.
Someone who writes an email similar to mine to you, for example, would not need to be diagnosably paranoid to give at least passing consideration to questions like these: "Do I want the NSA to put an asterisk beside my name?" "What repercussions might that have for my life?"
And Obama's Justice Department has used the anti-espionage statutes to treat investigative journalism in the national-security field as akin to treason. The things the Founders put in place to allow us to self-correct are caught up in the trap.
5. President Obama—even assuming he were personally inclined to lead the charge to rein in the overreach of our national-security apparatus—is uniquely disadvantaged in doing so. He has been called a "liar" by a GOP Congressman on national television. I actually know Republicans who believe he is, if not an actual comforter of terrorists, at least a Muslim.While the President must surely realize that History will judge him more harshly rather than less for letting concerns of this sort color his supervision of the national-security apparatus, from a human standpoint, it's easy to understand why he might feel that he "is not the right president" to take this on. Can you imagine what Lindsay Graham would say if the President took the position that the "Never Again' mission should be ratcheted down a notch?
I will close with one final note on the strange politics of this. I am a liberal Democrat who has supported this President in two elections. The only issue on the horizon that might cause me to vote Republican in 2016—the only conceivable one—is the need to rein in the national surveillance apparatus. What it would take for me to take such a previously inconceivable vote would be for a credible libertarian—a Rand Paul for example—to convince me that putting the NSA back in its box is his priority one. While I would grieve for the damage to Medicare and Social Security that this would surely entail, it's more important to me that we remain free, that it remain easier for citizens to keep watch over those who work for us in government than it is for the government to keep watch over us.
Happy Halloween.
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