Debating America's Surveillance State

By Glenn Greenwald
THURSDAY, AUG 26, 2010 11:27 ET
Courtesy Of "The Salon Media Group"

(updated below)

Earlier this month, The Cato Institute's Unbound published my essay on America's Surveillance State, and then invited several commentators to reply and participate in a debate of these issues.  Two of those replies were particularly critical:  this one from John Eastman, former Dean of the Chapman University School of Law (recent home to John Yoo), recently defeated GOP candidate for California Attorney General, and former clerk to right-wing judges Clarence Thomas and Michael Luttig; and this one from Paul Rosenzweig, a Fellow at the Heritage Foundation and a former Homeland Security official in the Bush administration.

My reply to them is now posted.  As I noted, those two responses "perfectly illustrate the continuous stream of manipulative fear-mongering over the last decade which has reduced much of the American citizenry into a meek and submissive faction for whom no asserted government power is too extreme, provided the scary menace of 'Terrorism' is uttered to justify it."  For that reason, I think the discussion is quite instructive.

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I linked to my reply both from Twitter and here, and the traffic seems to have overloaded the Cato site for the moment.  To read my reply, wait a bit and try clicking on the link again (it now appears to be loading, but slowly).

UPDATE:  With Cato's consent, I'm re-posting the reply here due to server issues over there:

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THE SURVEILLANCE STATE THRIVES ON FEAR

I’m particularly appreciative of the responses to my initial essay by John Eastman and Paul Rosenzweig. Those two replies -- especially the former -- perfectly illustrate the continuous stream of manipulative fear-mongering over the last decade which has reduced much of the American citizenry into a meek and submissive faction for whom no asserted government power is too extreme, provided the scary menace of “Terrorism” is uttered to justify it.

That more-surveillance-is-always-better mentality is what allows Eastman and Rosenzweig to dismiss concerns over surveillance excesses a mere four weeks after the establishment-supporting Washington Postdocumented that our Surveillance State is “so large, so unwieldy and so secretive” that not even top intelligence and defense officials know what it does. For those who are so fearful of Terrorism and/or so authoritarian in their desire to exploit and exaggerate that threat for greater government power, not even the construction of a “Top Secret America” -- “an alternative geography of the United States” that operates in the dark and with virtually no oversight -- is cause for concern.

Eastman’s essay centers around one three-word slogan: We‘re at war!For almost a full decade, this has been the all-justifying cliché for everything the U.S. Government does -- from torture, renditions and due-process-free imprisonments to wars of aggression, occupations, assassination programs aimed at U.S. citizens and illegal domestic eavesdropping. Thus does Eastman thunder, with the melodrama and hysteria typical of this scare tactic: “Not once in his article does Greenwald even acknowledge that we are at war with a global enemy bent on destroying us.” A global enemy bent on destroying us! Scary: be very afraid.

By invoking The War Justification for America’s Surveillance State, Eastman wants to trigger images of America’s past glorious wars. He’s not particularly subtle about that, as he begins with a charming story of how his grandfather’s letters were censored during World War I (how censorship of a soldier deployed in a foreign war justifies surveillance of American civilians on U.S. soil is anyone’s guess). But, for several reasons, this war justification is as misleading as it is dangerous:

First, unlike for past wars (such as World War I), the current “war” has no possibility of any finite duration or definitive end. Even its most enthusiastic proponents -- as well as the U.S. Government -- acknowledge that it is more akin to an ideological conflict (like the Cold War) than a traditional combat war. Islamic extremism is highly unlikely to end in the foreseeable future, to put it mildly. Thus, this “war” will drag on not for years but for decades, probably even generations. When President Obama unveiled his proposal for “preventive detention” last June, he said that "unlike the Civil War or World War II, we can't count on a surrender ceremony to bring this journey to an end" and that we'll still be fighting this “war” "a year from now, five years from now, and -- in all probability -- 10 years from now."

Thus, people like Eastman who want to radically expand government power in the name of this “war” are not defending temporary alterations to the American political system. Rather, they are urging its permanent transformation. We are, as the military historian Andrew Bacevich hasrepeatedly documented, a nation in a state of “perpetual war.” War-justified powers will be vested in the government not -- as people like Eastman imply -- temporarily, but rather forever.

Second, Eastman’s fear-inducing, glorifying description of a handful of Muslim extremists -- “a global enemy bent on destroying us” -- is so hyperbolic as to be laughable. Earlier this month, the State Department published its annual Report on Terrorism. Among its findings, ashighlighted by McClatchy’s Warren Strobel, was this: “There were just 25 U.S. noncombatant fatalities from terrorism worldwide. (The US government definition of terrorism excludes attacks on U.S. military personnel). While we don't have the figures at hand, undoubtedly more American citizens died overseas from traffic accidents or intestinal illnesses than from terrorism.”

Eastman wants to drastically expand the power of the American Government and subject U.S. citizens to sprawling, unaccountable surveillance, all because he’s petrified of a handful of extremists hiding in caves who cause fewer deaths to Americans than stomach diseases (or, at least he wants Americans to be that petrified). That’s how America has become a nation racked with fear.  Compare that mentality to what the U.S. did in the face of an actually threatening “global enemy”: the Soviet Union, which possessed a huge army and hundreds of nuclear-tipped intercontinental ballistic missiles aimed at U.S. cities.

Even at the height of the Cold War, the U.S. enacted the FISA statute, which criminalized government eavesdropping on American citizens without warrants. Every President until George W. Bush -- including Ronald Reagan -- was able to keep the country safe while adhering to that surveillance safeguard. But while even the most hawkish Americans in the 1980s -- facing the Soviet threat -- understood that domestic eavesdropping should be conducted only with judicial warrants, the war cheerleaders of the current decade insist that the far less formidable threat from Muslim extremists means we must vest the Government with the power of warrantless surveillance -- even on American citizens, on U.S. soil. That’s how far we’ve descended into the pit of fear-mongering and submission, thanks to the toxic mix of fear-mongers and the authoritarian cowards they exploit.

Third, there's no "war exception" in the Constitution. Even with real wars -- i.e., those involving combat between opposing armies -- the Constitution actually continues to constrain what government officials can do, most stringently as it concerns U.S. citizens. But strictly speaking, we're not really "at war," as Congress has merely authorized the use of military force but has not formally or Constitutionally declared war. Even the Bush administration conceded that this is a vital difference when it comes to legal rights. In 2006, the Bush DOJ insisted that the wartime provision of FISA -- allowing the Government to eavesdrop for up to 15 days without a warrant -- didn't apply because Congress only enacted an AUMF, not a declaration of war (emphasis added):

The contrary interpretation of section 111 also ignores the important differences between a formal declaration of war and a resolution such as the AUMF. As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act.

The Bush DOJ went on to explain that declarations of war trigger a whole variety of legal effects (such as terminating diplomatic relations and abrogating or suspending treaty obligations) which AUMFs do not trigger (see p. 27). To authorize military force is not to declare war.

Indeed, the U.S. is fighting numerous undeclared wars, including ones involving military action -- such as the “War on Drugs.” Given that our "War on Drugs" continues to rage, should the U.S. Government be able to eavesdrop on accused "drug kingpins" or associates without warrants? After all, Terrorists blow up airplanes but Drug Kingpins kill our kids!!! The mindset that cheers for unlimited Presidential powers in the name of "war" invariably leads to exactly these sorts of expansions.

The U.S., from its Founding, has been grounded in the need to balance security with freedom; that means sometimes sacrificing the former for the latter (which is why, for instance, the Constitution limits the State’s power to conduct searches or imprison people even though those limits will sometimes enable violent criminals to escape). People like Eastman evince no appreciation for that balance. Security is the only recognized value, and thus, like a frightened child calling out for a parent, they insist that the Government must have unrestrained power to do what it wants to Keep Us Safe. A country wallowing in that level of blinding fear will not be great for very long.

Rosenzweig’s reply is much more substantive and reasonable, and I’ll leave it to readers to compare on their own our competing claims about the nature of the surveillance abuses and the lack of oversight and safeguards. I do, however, want to flag one component of his response as illustrative of the erosion of liberty which the U.S. continues to suffer and the way in which it has been normalized.

It was quite common during the “debate” over America’s torture regime for Bush defenders to resort to the defense that even if we engaged in harsh or even illegal tactics, they paled in comparison to, say, the torture techniques employed by Saddam Hussein. It’s not like we have rape rooms and mass graves, they’d argue (leave aside the fact that mass graves, at least figuratively, are exactly what we’re leaving behind in Iraq, among other places). Our descent into brutality and lawlessness was epitomized by the fact that this became our new standard: as long as we’re not as bad as history‘s most despicable monsters, there’s nothing to complain about.

Rosenzweig’s dismissals of America’s Surveillance State abuses is redolent of that severe bar-lowering. He pronounces, as though it’s comforting: “Whatever one may say about the United States, our system is far more protective of civil liberties and privacy than, say, China or Russia or any of a dozen other readily-named nations.” The U.S. once proclaimed itself “the Land of the Free” and our President “Leader of the Free World.” We’re now reduced to this sloganeering boast: Not as Tyrannical as Communist Regimes!

Is it really a comfort to anyone that the American Surveillance State is not as invasive or out-of-control as Russia’s and “a dozen other nations”? Moreover, that premise is highly debatable. As I noted in my initial essay, quoting The Washington Post: “Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications.”

And consider this 2007 chart from Privacy International, a group that monitors the surveillance policies of nations around the world. Each color represents the level of the nation’s privacy and surveillance policies, with black being the most invasive and abusive (“Endemic Surveillance Societies”) and blue being the least (“Consistently upholds human rights standards”) - click on image to enlarge:

Note that this chart is consistent with Rosenzweig’s “defense” of the American Surveillance State that “our system is far more protective of civil liberties and privacy than, say, China or Russia or any of a dozen other readily-named nations.” For a society claiming to be devoted to principles of individual liberty and restrained government power, is that supposed to be some sort of comfort that we do not, in fact, now live under an out-of-control, increasingly entrenched and inherently abusive Surveillance State?