Inter Arma Enim Silent Leges

I’ve had an ex accuse me more than once of being a dirty libertarian because of my views on the overreach and abuse of powers by the world’s intelligence agencies, in particular the CIA, NSA, and GCHQ. I don’t think really think about myself; in general, I’m about the most liberal person I regularly hang around with. I like taxes, universal healthcare, public education, Elizabeth Warren, Bernie Sanders (Go 2020!) the EPA and SNAP. While my views on civil liberties with regard to domestic surveillance may overlap with those of notable libertarians, I believe we arrive at the same conclusion for different reasons.

What I do not like is government agencies having broad powers to spy on the public, and the agencies I mean are the CIA, GCHQ (though I am aware this is not a United States entity) and – especially – the NSA. The purpose of these institutions are antithetical to democracy and human dignity, and should be despised and abolished. Are spy agencies necessary to the security of a free state? Are they necessary to secure the freedom of the citizens? Are we being kept safe by whatever “national security” apparatus gets uncovered by investigative journalists this month? I believe that we are not. They should be abolished, or at least dramatically restricted in the scope in which they are allowed to operate. I will argue that the existence of such intelligence-gathering agencies as the NSA and GCHQ undermine our ability to govern ourselves effectively, because they run counter to democratic principles.

I: Democratic Principles

What do we mean by democratic principles? My definition of this phrase is important because in colloquial usage, the term “democracy” gets thrown around as a simple idea meaning “majority rule” or, perhaps a bit more nuanced – though still not totally accurate – a system of representative government such as the United States has. What I mean by “democratic principles” is something much more than this, and it encompasses three specific concepts: democracy as a system of governance, a membership organization, and a culture. The three concepts are interdependent on one another; we should reject overly-narrow conceptions of democracy that focus on it as a system of governance alone. Laws alone do not make a democracy, and it is not merely “majority rule”. Such a conception stresses decision rule, handing victory to the majority and discounting ideals of equality that form the basis of fulfilling democratic ideals.

Democratic government is an expression of democratic culture, and its point is to serve the democratic community and realize its promise of universal and equal standing. It encompasses such principles as universal citizenship, the equality of citizens before the law, the granting of civil, social, and political rights to the governed, accountability of government, and perhaps most importantly, the consent of those governed. In the 1860s during Reconstruction, after black persons and former slaves had won citizenship, opponents of equality tried very successfully to narrow the scope and value of what they had won. Several northern states defeated referenda to grant black people the right to vote in 1865, and Southern States enacted the Black Codes, which attempted to virtually reenslave freedmen and free blacks. The Radical Republicans realized violating the principle of equal rights violated the requirement that “just government stands only on the consent of the governed”. At the time, however, a vast majority of the citizens supported segregation of public facilities. Our conception of democracy must reject this simple governance by majority rule, because it inflicted an expressive injury on black citizens, making them an untouchable caste, which is incompatible with realizing their rights as free and equal citizens. A simple majority approval can subvert democracy. A majority decision to disenfranchise a minority and prevent its members from voting, assembling, or running for office is tyrannical and undemocratic. So too is any law – no matter what majority of the populace agrees with it – that subverts universal citizenship, the equality of citizens before the law, civil, social, or political rights, or government accountability.

Democracy also serves a function as a membership organization, in which all citizens must (or are allowed, if not downright encouraged to) be engaged in for the system to work effectively. Simple and bare equality before the law is insufficient to constitute citizens as a collectively self-determining body. If some class of citizens can regularly settle public issues by discussing them only among themselves, excluding some other class from discussion, or ignoring what they say, they would constitute an arbitrary ruling class with respect to the others. Democracy demands that citizens discuss public issues together, as equals. When citizens are divided into noninteracting groups, their opinions would not amount to a unified consent of the governed. For instance, “intelligence community” vs “the public who doesn’t understand what we do”. In devolving into an “us-vs-them” mentality, disparate groups hoard information, political and social power, and subvert the democratic principle of inclusive self-government.

Democracy further serves the function as a system of accountability, and contained within this is the idea that a government must be transparent in regard to its application of, and interpretation of its laws. In a government for the people, by the people, complaints and “petitions for a redress of grievances” are expressed to those the people held accountable for resolving the complaints or meeting the demands. They embody claims of right, justice, or entitlement. Justice is not always served in government – the Supreme Court reverses incorrect decisions, correcting earlier mistakes (or, in the case of Citizens United v. Federal Election Commission, making new ones) – and citizens have the right and responsibility to challenge unjust policies and mandates. The government must justify its laws and mandates to the people. Nowhere is this more evident than when the state uses force to oblige compliance with a law, as force necessarily involves imposition of will on the unwilling and therefore a potential, though not necessary, violation of self-determination. This is not necessarily unjust – the United States forced, through the Civil Rights act of 1964, public institutions to not discriminate on the basis of color. The use of force was justified in the use of coercion or invasive force to the people. Transparency is a requirement for democracy because for a government to be accountable to the governed, they must know what it is doing. It must explain why its coercion is necessary for the common good. One important implication of this requirement for transparency regards interpretation of law. Interpretation must be public, and furthermore, be justified and open to criticism and revision by all citizens – not just a de facto ruling elite who make decisions amongst themselves in private.

Finally, democracy is a culture, in which citizens interact cooperatively and in an environment of social equality. Equality not only in legal rights, but in public standing, fit for association, discussion, debate, and interaction with one another – equality as a social norm, and not only as a nominal legal status. According to Elizabeth Anderson, one way to discern the outlines of equality is to examine the contours of its opposite – hierarchy. The core of hierarchy consists of asymmetrical relations of command and obedience. Hierarchy is not inherently unjust – we accept that law enforcement officials have certain powers that they may exercise at their discretion that ordinary citizens may not – the power to stop us for violating a traffic light, for instance, and we accept this for efficiency’s sake. Children, when they are young, exist in a hierarchical relationship with their parents, for obvious reasons. What makes a hierarchy unjust, especially in the context of a political office with superior authority, is when the powers of the office are not narrowly constructed to fit the ends it was designed to accomplish, when the ends of the public office were not set democratically by means of open and transparent debate and consultation of the members of the public, and when the ends of the office are not compatible with the general principles of democracy and serving the public interest. It further goes without saying that the superior members of the hierarchy must also only use their powers within the narrowly-defined constraints of the ends of their office, and any use of their official authority outside of these narrowly-defined terms of their office would constitute an injustice.

II: The Security State’s Incompatibility with the Principles of Democracy

Now we have examined the ideals of democracy, as not only a system of governance, a membership organization, and a culture, and posited the terms by which a hierarchical relationship with state actors may be democratically justified, we can enumerate
the ways in which the various state surveillance apparatuses violate these ideals.

a) Mission creep and lack of civilian oversight

Mass surveillance of the sort that Edward Snowden revealed to the world in 2013 was not of the sort that the general public was aware of, or had voted on, or had agreed to either implicitly or explicitly. While the sheer scope of the programs that Mr. Snowden revealed have little parallel in recent history, history shows that any time a trove of information that law enforcement could find potentially “useful” to their funding or stature exists, ways to use it will be dreamed up. This is what I mean by “mission creep”, the tendency for vast surveillance apparatuses to be used to defeat crimes far less serious than it was intended to combat.

This worry isn’t just theoretical, it’s already happening, and being lied about. In 2013, Reuters reported that the United States DEA was:

“funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.”

Although these cases almost never involve national security interests, documents reviewed by Reuters reveal that law enforcement agents were directed to lie about where their investigations begin, in order to conceal the fact they’re using probably unconstitutional means to acquire the information.

It’s not difficult to imagine a future where the government makes an argument that vast surveillance systems are too good not to use for crimes far less serious than ones involving national security or terrorism. Once the legal authority to collect and process all American’s e-mails, phone calls, text messages, Facebook posts, location data, and who knows what else, why stop with terrorism? Slippery slopes arguments are speculative, but there’s good reason to believe that as regards mass surveillance networks, they will almost certainly come to pass. As Bruce Schneier says in his book: “Once the technology is in place, there will always be the temptation to use it. And it is poor civic hygiene to install technologies that could someday facilitate a police state.”

These systems do not have meaningful civilian oversight, except at the highest levels – the occasional senator, cabinet-level White House personnel, or the President. Even then, there is little to no congressional oversight, and members of congress are routinely denied access to information about sweeping surveillance systems and program. The FISA Court is, according to its own chief judge, incapable of investigating or verifying how often the NSA breaks even its own secret rules. A March 2009 FISA Court opinion states that protocols restricting data queries had been “so frequently and systemically violated that it can be fairly said that this critical element of the overall … regime has never functioned effectively.”

b) Discourages participation

Related to the above, the citizenry cannot meaningfully participate in the democratic process when one group of people routinely uses their power to settle issues among themselves, excluding the “person on the street” and acting as a ruling class with regard to the others. Without participation, there is no democracy. When the citizenry cannot participate in, comment on, or challenge the legitimacy of  a government action, then our most fundamental rights, the rights to self-determination and participation in our own governance, is strangled. Abuses come to light only when we get a Snowden. We cannot rely on mere good fortune to safeguard our freedom.

c) Discourages transparency

A just government stands only on the consent of the governed. The NSA, CIA, and other security apparatuses do not stand on the Divine Right of Kings. They can, and must, only stand on the consent of those to whom – at large – they turn their prying eyes. We, as a society, must know the extent of, and nature of, their spying before we can properly consent to it. We cannot have Clapper-style perjury passing for transparency. Government officials cannot be above the law; they must be held accountable if they mislead the public, instead of being allowed to resign and land a cushy job at a hawkish DC think tank.

d) Discourages accountability and breeds paranoia

When one group of people has unfettered access to information about the private lives of a majority of the citizenry, without strong systems of oversight and auditing, it creates an environment rich for the propagation of abuses of power. NSA apparatchiks have been guilty of spying on love interests (which happens so often it has its own “humorous” term: LOVEINT), recorded financial transactions and secret trysts that it had no business looking into. It seems that the insular world of national security surveillance breeds an us vs them mentality, a feeling of power, and it’s not hard to imagine a slow, creeping paranoia.

e) Culture: ever-present surveillance has a chilling effect on political speech. This is of concern particularly in an age where the American president shows signs of increasing paranoia, has openly stated his disregard for the rule of law, talks of jailing his political opponents, and shows unprecedented hostility toward the free and independent press. The government unfortunately has a history of spying on the press, elements it deemed “subversive” (such as Rev. Martin Luther King, Jr.) and attempting to prevent the publication of stories deemed detrimental to its image both at home and abroad. It’s not difficult to imagine a future where newspapers fail to publish embarrassing information because of fear of retaliation by the government, or worse, reporters and sources are threatened – through the use of intimidation and aided by an oppressive surveillance state – into silence. The best way to keep this from happening is through strong privacy protections for not only the press or government whistleblowers – remember, Edward Snowden was a civilian contractor, not a member of the press or the government, and not covered by whistleblower protection – but for all citizens.

The entirety of the NSA’s and CIAs domestic surveillance programs should be abolished, confined to the dustbin of history, and all of their employees fired, and any immunity they had for crimes they committed revoked, and punished in accordance with the law. To whatever extent the United States needs any domestic surveillance, it should be overseen by a board of civilians pulled not from the ranks of the political elites, but by ordinary citizens, much the way we do jury duty today. Senators and congressional representatives and the public at large must be fully informed of, and allowed to vote on, of any program that could potentially violate the rights of any group of citizens. The needs of any domestic surveillance program must by narrowly-tailored to fit its goals, and be temporary, automatically expiring when no longer needed. All data that has been illegally collected over the years must be completely destroyed.

As I have argued, the missions of the US spy agencies (and to a lesser extent, foreign state actors) are incompatible with a free and informed citizenry, and incompatible with the ideals of democracy that we laid out before. Their actions do not comport with our ideals of a democratic society; it clashes with the principles of membership, accountability, and transparency. The government does not attempt to justify to its citizens the width or breadth or even the existence of its spy programs. When the citizenry is denied the opportunity to participate in, or even comment on – in a truly meaningful way, in a way that could change the direction of – these programs, then the government has violated its sacred duty to the citizens, and to democracy itself, and taken a turn toward the dark path of dozens of brutally authoritarian regimes before.

Exit, stage left

Leave a Comment