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

j j j

How Will I Screw Up My Kids?

Every parent makes questionable decisions regarding their children. With the best of intentions and a huge helping of love, parents the world over raise their children while making huge, stupid mistakes, and for the most part the kids turn out fine. Of course, you have your occasional Ted Bundys and John Wayne Gacy Jrs and Sen. Mitch McConnells, but those are outliers. And this has recently become a topic of some fascination for me, as I have recently acquired some children, and I have a strong intrinsic desire not to fuck up their futures, or indeed their presents, by being a terrible parent.

Childhood was, for me, dominated by church and school. The church that I grew up in was a hellscape of rejection and angst for me. From the time the kids in my grade there were old enough to talk, I felt universally rejected by them. I was a slight child, not strong or fast, and my interests in science fiction, LEGO, and precocious (read: bizarre and idiosyncratic) speech habits painted a giant bullseye on my back saying “easy target”. The insults weren’t subtle: “Shrimp” was a favorite, along with corruptions of my name, jabs at my interests, and when my tormentors grew older and larger while I remained the same size, physical assaults. When you’re being pushed up against a wall and having your forehead spat on, your general inclination is to make it stop, but you generally don’t feel the greatest burn of injustice until your parents ask you, bereft of insight or self-awareness, “Was it a wad? Or just a spray?” while contemplating how not to confront the parents of the little shirtbird that did it. Even then, that all this took context within the context of a church ostensibly dedicated to creating people who acted more like Christ was a rich irony that I would not appreciate for years.

Church, such as it was, is as good as any place to start, because my parents were (and I do not believe their views have changed) religious fundamentalists. The Evangelical variety, that elected George W. to office, believe in literal seven-day creation of the earth (the dinosaur bones were put there by God to test our faith) combined with the absurd moral panic about “secular culture” common to so many Evangelicals during that era and beyond. When we weren’t at church, which was three times a week mind you, we were being homeschooled, to keep us1 from absorbing the “liberal secular agenda”, replete with its acceptance of horrors like evolution, basic science, and church / state separation.


Side note: yes, this is the curriculum we used, and yes, it really does look like this. You can find out more about ACE PACEs at The Faithless Feminist. ACE (“Accelerated Christian Education”) was also super-okay with apartheid.

To understand my parents, one must understand the Evangelical movement in the 90s. If you’ve ever seen the documentary Jesus Camp, this is basically what I grew up in, with only very minor differences. Clinically, they believe in the literal truth of all the Bible, even the bad / silly / clearly a bad mushroom trip parts. But a clinical reading of the definition of evangelicalism doesn’t do the reality of our lives justice. Later in life we moved to a much weirder Pentecostal church that had a strong cult of personality aspect around the pastor, and also engaged in common Pentecostal behaviors like enthusiastic hand gestures during songs and very silly services. Evangelicalism has some dark parts, though, condemnation to eternal torment because two mythical proto-humans ate some magical fruit, fervent hatred of LGBTQ people, a squeamishness about sex that borders on the absurd, and a strong belief in corporal punishment. Another salient bit: when you’re one of these Evangelical / Pentecostal types, you tend to see the Sinister Machinations of the Devil in every news report. The President’s use of the phrase “a truly new world” during a State of the Union address elicits audible gasps and shudders, because The Illuminati or something is planning the Mark of the Beast from high atop the evil fortress of whatever. Spirits and demons are very real powerful entities out to ensnare our souls. “Spiritual warfare” is a very real and very concrete concept that involves hardening your soul against the encroaching hoards of darkness, being in a continual state of prayer and communication with God, and a belief that God is speaking directly to you, in the present, through prophesies, and you might choose to listen to a weekly AM radio broadcast hosted by some really paranoid white people about this.

Imagine if you will this swirling morass of trends, philosophies, and a vague persecution complex, and you will understand the constituent ingredients that coalesced into my parents’ parenting philosophy. Not to oversimplify, but it can be largely summed up as “Mostly Bible, not too much ‘worldly’ entertainment, and we are the bosses.

To dwell too much on the religious aspect of my upbringing would be, I think, a distraction from the point I’m trying to make. Plenty of parents are religious, some of them fervently so, and at any rate, I escaped that world. It’s important to put my parents’ beliefs into context, because it informed a very broad swath of our interactions, but at the same time, the mistakes I’m worried about making aren’t about forcing religion down my2 children’s throats. I worry about the mistakes I already see myself making, the insidious ones that at the time my parents made them, I didn’t think to think were…bad.

My parents were shouters. Anger came in the form of an exponential increase in decibels3. Most of this came from the parent we spent the most time with during the homeschooled years. Often, threats to wait until the other parent got home to deal with us were spat angrily at us, or all manner of scoldings and shamings. I knew, even then, how much I hated the yelling and anger, and I vowed never to do that to my own kids.

Thing is though, little kids are shits sometimes. They’re stubborn, they’re irrational, they have limited cognitive means at their disposal to deal with or even describe their problems in ways that grown-ups will understand. Sometimes they’re spacey. Sometimes they’re silly. Basically, adults, with exceptionally poor impulse control. Getting them to listen is often an exercise in extreme frustration. When you’re sitting on the edge of a tub and you need to brush her teeth because teeth are sort of an important thing she’s going to need both now and in the future, and all she’s interested in doing is grinning at you from the toilet while she  s l o w l y  crumples WAY too much toilet paper up for the tiny little trickle of pee she just let evacuated from her tiny little bladder and it’s past her bedtime and when little girls don’t get enough sleep they resemble something from a Stephen King novel so would you hurry the hell up and get over here already you don’t need that much toilet paper we need to brush your teeth

You’d feel like yelling too, is my point. And it is the gosh-danged hardest thing in TEH WORLD to not, in that moment, let that tone of irritation and volume creep into my voice. And every time I let it happen, I immediately feel terrible afterward. This is what my parents would have done. Fussing at them and grabbing them to stuff them into their pajamas and get them to wash their hands while not simultaneously wasting an ocean’s worth of water with the taps on full blast is irrational, because they’re young and showing them how Adults Do Adulting by dealing with problems calmly is how they learn, and I can feel anxiety and irritation rising up inside of me every time I fail to act like that. Realizing these as the ghosts of parenting past doesn’t help dispel the urge to do the exact same as was done to you. My parents hit me. They called it spanking. Who knows if they genuinely thought they were doing it for the right reasons. I’d wager that fifty percent of the time it was out of anger, fifty percent of the time it was laziness over choosing a better disciplinary tool. Those tools are right there – keeping calm, redirecting negative behaviors, acknowledging feelings. They’re hard to choose in the moment.

There’s a really sad movie with Nick Nolte called Affliction about this. Nick Nolte’s dad in the movie is a mean son of a bitch, played wonderfully by James Coburn. Nolte is somewhat estranged from his young daughter, who’s a little scared of him. Nolte, struggling to spend more time with his daughter, grasps vainly at being not his father, yet succumbs anyway, through the same process that turned his dad into an asshole and most certainly against his will. He fails, he knows he doomed, but by the time it happens he doesn’t care enough anymore to do anything about it.

I don’t believe that who parented you predetermines how you’ll parent. But it is a stamp, more or less indelible, more or less predictive, on how you interact with the world. I worry that my kids will internalize my angrier, annoyed moments, and remember those – because I remember my parents’ angrier, annoyed moments. I remember the time my father hissed angrily at me to go hang out with the kids on a youth trip that he knew I hated and that hated me. I remember the screaming and object-throwing at home-school. These are not things I want to pass on.

I’m not claiming I was abused. I had loving – if woefully misguided and underprepared – parents, who genuinely wanted the best for me, in their own way. I worry about posting this because I’m afraid they’ll find it and think I’m basically writing an expose on how terrible I think they are. This isn’t the case. I think they did a lot of things wrong, and I don’t want to repeat those mistakes. I think we’re doing a lot of things right – there is very little yelling overall here. We’re teaching them to cook, that sex is a thing that exists in the world, that money is something they need to manage, that we can’t solve all their problems, that they need to be independent people in the world, and that the TV is not a substitute for going outside and playing. (My parents got that one right.)

But even if I avoid my parents’ mistakes, other mistakes are unavoidable. And only through constant vigilance can those not become ingrained patterns that they’ll pass onto their children.

Exit, stage left.

1: My sister and I
2: Some are biologically mine, some aren’t. Either way, I’m a parent to them.
3: Which is actually one-tenth of a bel. Go look it up.

j j j