Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Some Friendly Advice For National Security Hawks
Since Edward Snowden’s leaks and subsequent defection, there’s been a raging debate on the Right about the proper role of our nation’s intelligence services. Those who favor broader powers and a more active role for these services have been on the defensive.
While I count myself as among the critics of such programs – as much because I believe they’re ineffective as that they’re dangerous – I share the hawks’ concern for my fellow citizens’s safety: I don’t want my loved ones or countrymen blown up by Islamic fanatics any more than the next guy.* Keeping us safe and in peace requires a lot of work, including some degree of surveillance. As national security is one of the core responsibilities of the Federal Government, our intelligence services bear an incredible burden.
That said, a majority of Americans – including many generally disposed towards hawkish polices – have lost their trust in our intelligence services’s ability to pursue terrorists without compromising citizen privacy. As John Oliver rather hilariously put it to former NSA Director General Keith Alexander a few weeks ago:
Do you think that the NSA is suffering from a perception problem with the American people at the moment, bearing in mind that the answer to that is yes?
Alexander acknowledged the problem, but then rattled off the familiar, ineffective talking points of the past year: that the American people aren’t the target of these programs; that the NSA has only the best intentions in mind; that it would never abuse its powers; that they’re not really looking at anything very sensitive anyway; etc. Oliver spent the rest of the interview mercilessly mocking these defenses.
Though I disagree with Alexander and other national security hawks on these matters, their perspective and responsibility are too important to be dismissed so quickly. But if hawks want to sway the American people, they need to offer better arguments than their leaders have proffered so far; I think they can and that it’s important that they do. Here are eight suggestions how you can make a better case:
1. Accept the problem and stop carping about it. You may say the criticisms against our intelligence agencies are unfair, or betray ingratitude and ignorance; you may be right. Regardless, the people you’re serving don’t feel well served by you. If you’re correct on the substance of these issues, then you need to work to change hearts and minds. Being right isn’t good enough; you must also be persuasive.
2. Acknowledge limiting principles. Defenders of the NSA’s policies and other post-9/11 security changes have consistently cited incredibly broad powers in defense of the government’s policies. When you begin your arguments by implying — if not outright stating — that the executive branch’s powers are essentially without limit when it comes to national security, it shouldn’t surprise you when people express concern with your judgement. Tell us — explicitly, and in plain language — what’s out of bounds, either constitutionally or as a matter of policy.
3. Acknowledge the asymmetrical nature of information on this. A common retort from defenders of the government’s policies has been “Can you explain to me how your liberty, or that of anyone you know, has been infringed?” Though the point behind the question is fair, the question itself plays into people’s paranoia, as the nature of the (alleged) abridgments of privacy is clandestine. By intent, it’s difficult to know if you’re being spied on; indeed, the point of spying is to do so without the target’s knowledge. And while your opponents need to make every effort to get their facts straight, you should acknowledge that they’re not the gatekeepers of information on this.
4. Tell us everything you possibly can and don’t exaggerate. If you intercepted a big plot a while back that hasn’t made it to the press, tell us about it and be blisteringly honest (as opposed to this). While doing so might compromise some intelligence or tactics, not doing so might have worse effects if Americans underestimate the threat, conclude that your services aren’t necessary, and elect politicians who will scrap or scale back the programs too far. Uninformed citizens can’t be expected to make informed decisions.
5. Leave Snowden out of it. Whether one thinks of him as a self-interested traitor, a noble whistle-blower, or Putin’s useful idiot — or some combination of all three — is largely based on what one thinks of the programs he exposed. Describing all the ways in which you find Snowden odious isn’t going to move people’s opinion about the programs he exposed, though defending the programs effectively might change people’s opinions of him.
6. Leave the strawmen out of it. Just as your critics need to cut out the rhetoric about “jack-booted thugs” and “police states,” you might want to watch your language. Implying that your opponents are indifferent to the safety and lives of fellow Americans comes off as arrogant and patronizing and isn’t going to help you.
7. Ask questions. Since the American people object to what the NSA is doing, ask them what they’d prefer you do instead. Then, explain costs and benefits of each alternative. This (rightly) puts the burden on citizens to shape their government’s policy, and might yield some interesting results.
8. Remember that you’re defending the government. While you may see a difference in kind between our intelligence services and other federal agencies that have abused their power recently, many of your fellow citizens do not make such distinctions. That this may be unfair makes it no less true.
If the Snowden leaks have taught us anything, it’s that there is a serious disconnect between what the American people thought they had authorized in the name of security and what our intelligence agencies were actually doing. Keeping us safe and free requires that we repair that break as soon as possible.
* As it so happens, I was a few blocks down the road from the attempted Manhattan Car Bombing, and my office is so close to the site of the Boston Marathon Bombing that my building’s western entrance was in the crime scene. My then-fiancee called me frantically a half dozen times to make sure I hadn’t gotten my legs blown off.
[Image credit: The mission logo of NROL-39, satellite launched by the National Reconnaissance Office in December 2013]
Published in General
Well done, Tom. I wanted to make sure you knew someone read this after the dreaded “Draft Timestamp.”
Ahh, looks like it’s been remedied. I’ll be surprised if this doesn’t get Main Paged anyway.
I’d simply like to see more people acknowledge how the decentralized nature of the Internet makes the job of gathering and analysing foreign signals intelligence (SIGINT) way more complicated.
I don’t think there are many people out there who genuinely argue that a state has no right to gather and analyse foreign SIGINT.
The problem comes when foreign SIGINT is chopped up, packet switched, distributed, and mixed in with domestic signals across domestic networks.
I cannot claim to know the solution to the problem of weeding out the foreign signals from the domestic signals in such a scenario, but I wish more people on the pro-liberty and pro-privacy side of the debate would at least acknowledge the difficulty before they condemn all of their nation’s SIGINT activities.
When someone on the pro-liberty/pro-privacy side condemns all intelligence activities without acknowledging the legitimate functions of their nation’s intelligence agencies, I find it very hard to take them seriously. The issue demands more nuance than I often see.
And I write this as someone who is generally pretty paranoid about government surveillance!
Lots of good posts today.
Well done, Tom. Good enough to bring me back to Ricochet and poke around 2.0.
Well done Tom. Part of the problem is our huge dependence in SIGINT. If we had more and better HUMINT, the other wouldn’t be as important and might not need to be as intrusive.
Just so you know, few conservatives outside Boston and Manhattan thinks “I live in Boston and Manhattan, so I’m super serious about security” is a terribly persuasive argument. Citing John Oliver for support does not help either. I don’t know if you used the argument in an early draft that Obama was against it before he became President, and he’s usually right about stuff, but it seems like that would make it a trifecta. ;-)
More seriously, I’m not sure that aggressive compromise is helpful. It seems likely to me that there’ll be a fighting retreat until we get either another 9/11 scale attack or something massively more serious, when support will return. As a result, my hopes are that the next non-trivial attack is on a 9/11 scale.
It’s hard to get HUMINT on ethnic groups that you don’t have large numbers of (the numbers of Muslim Arab Americans and Muslim South Asian Americans are relatively small).
It’s hard to get HUMINT on dispersed groups. Lone wolves whose contact with parent organizations is limited to watching their youtube channels and reading magazines are even harder to track.
It’s hard to get HUMINT quickly, and we’re still not much more than a decade from having trivial resources devoted to the issue.
The number of people and organizations to keep track of is simply enormous.
It’s not at all clear that HUMINT will be safe; if you’re embedded in an AQ group, you’ll have to act pretty unpleasantly, and America seems likely to be disposed to treat its agents poorly with the next Snowdenesque leaks.
Snowdens blowing cover eviscerates HUMINT programs, and agents.
HUMINT needs to be ramped up as fast as possible, but only that fast.
… so you’re sayin’ there’s a few!
Good post Tom. I know it’s not directly on topic but I’d like to get your opinion on something. How do you think proponents of the NSA programs should deal with claims that the programs violate the Constitution specifically the Fourth Amendment? This is an argument frequently put forth by the program and it is simply incorrect. I’ve tried to explain why programs collecting metadata without warrants do not violate the Constitution, but to no avail. I have more than once had the experience of explaining fourth amendment jurisprudence dating back to the founding of our country only to get a response along the lines of, “Well, that’s just what a bunch of judges and lawyers said and we all know they can’t be trusted.”
A couple points. One, the precedents cited aren’t seen as very persuasive. The common one is Smith v Maryland (the pen register one, in case I’m misremembering), but if we allow that’s constitutional it doesn’t follow that what you do to one person applies to everybody at once.
Two, the reasoning in that case isn’t very persuasive. A lot of people have problems with the third party doctrine, including the Rocky and Bullwinkle of the conservative legal movement, even if they allow for the program on other merits.
Three, precedent only works a a guide when the precedent still applies. Because of the capabilities that modern computers and other such devices it’s not at all clear that the situation today is analogous to the ones that generated those precedents.
And finally, people just react negatively to the idea that the government is keeping tabs on them without any reason to suspect that they’re doing something illegal. Whether or not that’s reasonable in these circumstances, telling people “that’s already been decided, you’re wrong” doesn’t lead them to think critically about the previous decisions. It makes them dig in their heels and say “No, you’re wrong!” Frankly, the priesthood of lawyers and their tendency to descend into legal jargon and their unwillingness to challenge precedent even when it’s blatantly stupid doesn’t inspire much trust in the layman.
The thing is, in many cases “Unconstitutional” means “I don’t agree with it.” They don’t really care if it’s Constitutional because they simply believe it’s wrong and they feel claiming it violates the Constitution is the strongest way to signal their disagreement, so you’re not going to get anywhere explaining it is Constitutional.
You’re only going to make headway by convincing them there’s nothing to fear. That we won’t find out a decade from now, in some big scandal, something that confirms their fears.
There’s right and wrong, and then there’s Constitutional. People tend to project their own opinion of right and wrong onto the Constitution.
I think you’re right.
Hank- I agree with you that lawyers have an unfortunate tendency to resort to technical legal jargon when their power points can be made in more vernacular terms. When discussing legal matters with non-lawyers I do make a conscious effort to avoid legalese and appeals to authority as much as possible. However, sometimes speaking in technical terms and referring to precedent is unavoidable. In such cases, I do my best to explain in non-technical terms the concepts in question as well as the reasoning behind the precedent cited.
What I find frustrating is when, after I have given a fairly comprehensive explanation, the response I see you completely ignores the substantive points that I made (your own argument is far more substantive than the ones I commonly encounter). Instead, the response is usually something along the lines of an unexplained, “Well, you’re just clearly wrong,” accompanied by a snarky remark about lawyers or the legal profession. The experiences in to what I imagine a doctor feels when trying to explain to a patient that homeopathy is nonsense when that patient is convinced that homeopathic treatments will cure his cancer.
Sorry, should have been “the response I encounter completely.”
Probably the best response is simply to ask “Well, what does the 4th Amendment say?” and point out that the telephone numbers one dials are hardly more one’s effects and papers than are the addresses on envelopes you send.
As most people equate the 4th amendment with a general right to privacy, and it’s not hard to see why, so you might say “Look, this may be a moral invasion of privacy, just not the one the law currently protects the way (you think you should). Just because you think something should be a constitutional matter, doesn’t mean it actually is.”
I confess I’m not keen on the idea that the government can run a perpetual pen registry on all of us all of the time, but that’s not necessarily a constitutional matter.
Great post Tom. I, for one, would love to hear a response from our ever-vocal resident national security hawk experts.
You know who you think you are.
Remember that chain of precedents though. When a lawyer says “unconstitutional” he’s saying “Unconstitutional derived from the decision in Beeblebrox, which as we all know derives from…” A layman can read the constitution, and understand what the words say. But what the words mean, according to the courts, has been modified into something he won’t know without a law degree.
Not that people don’t use it as an intensifier…
That has generally been my approach. It has been effective in persuading the undecided, but I’ve found that a segment of opinion on this (and just about any other constitutional) question is held with an almost religious fervor which is not really open to debate.
That’s my position on the matter. I tend to view the NSA programs in question as troubling, but not unconstitutional.
It’s true that the Constitution is a wonderfully accessible document, but that does not mean that it is always unambiguously clear. What constitutes an “unreasonable search?” What do the Necessary and Proper and General Welfare Clauses of Article 1 Section 8 actually mean? What makes a punishment “cruel and unusual” or bail “excessive?” I’m not saying you need a law degree to answer these questions, but the text does not provide obvious answers. Anyone is entitled to take a position on these questions which differs from the one the courts have arrived at, but if he does he should be able to explain why his view is correct in a way that goes beyond lawyer-bashing and claiming an ambiguous text is actually crystal clear.
That sounds very much like most of you are saying the constitution is worthless. It can be interpreted, reread or simply ignored, so what good is it? What was the point of putting “unreasonable search” in there if it can reinterpreted to include everything somebody decides it does?
I’m not trying to troll here, you guys are scaring the crap out of me.
I am emphatically not saying that. What I am saying is that the meaning of some constitutional terms, such as “unreasonable search,” is not completely defined by the text. That does not mean that the text lacks substance or any interpretation of such terms is acceptable. It means that the text is not comprehensive or free from ambiguities. Constitutional questions should be resolved by looking first to the text, but those who claim that all constitutional questions can be answered solely by reference to the text are either uninformed or disingenuous.
The problem with HUMINT (spying, in plain English), is that it involves spies and traitors. Spies and traitors tend to be icky people doing icky things in dark alleys, and American politicians don’t want to get splashed when the icky stuff hits the fan. SIGINT, on the other hand, mostly gets done from secure offices, in the CONUS, and unless some traitor/whistleblower (take your pick) spills the beans, people never hear about it.
SIGINT also plays to America’s technological strengths. We’re good at SIGINT. In WWII, we were able to ambush the Japanese fleet at Midway and kill Admiral Yamamoto because we broke the Japanese naval codes. Project Venona had the goods on Alger Hiss and other Soviet spies. Unfortunately, the US government was so riddled with Soviet spies that they couldn’t report their findings without exposing the program. NSA finds useful information, today, if politicians would act on it.
It’s not surprising we lean heavily on SIGINT.
What good is the constitution if interstate commerce is defined to mean “me sitting at home not buying health insurance.” What good is the constitution if the separation of powers doesn’t stop the executive from rewriting laws on the basis of what he feels like enforcing this particular five minutes? As the saying goes, if you’re not scared you’re not paying attention.
The Constitution is valuable, but there is a continual fight to make sure it protects us from what it says it protects us from.
What is an “Unreasonable search”? The answer isn’t “I’m a reasonable person and I think that’s unreasonable.”
I’m not sure a pen registry counts as a “search” in any meaningful sense, and certainly not in the same way rifling through one’s documents would. That said, I think there are plenty of non-constitutional reasons to the NSA’s polcies on this matter (which, as I said earlier, seems to constitute running a pen registry on all of us, all of the time). To be clear, I oppose the NSA’s policies on these matters.
On the other hand, I find the Feds’ attitude toward electronic documents much less likely to be consistutional. So far as I get this — someone please correct me if I’m wrong — there are 4th amendment protections on any information stored locally on one’s computer, but essentially none for anything stored in anyway over the web. Again, if I have this right, the contents of my DropBox folder are no more protected than this post, which is completely insane.
So which searches are unreasonable? Despite the plain text of the constitution, it’s impossible to know that without a law degree. The legal history of that question is long and storied, and rightly so. In the case of the NSA, does keeping track of who I call and when constitute an unreasonable search? The case law tends to argue that it doesn’t. I would say that it ought to. We won’t know whether or not it does until nine in robes decide. (Not the Supreme Court, the Illuminati. I kid, I kid.)
I don’t know if there could be a better way to settle that particular question. But there are times when I want to smack people and say “What part of ‘shall not be infrigned’ don’t you understand?”
This is a question upon which reasonable people can and do disagree. What is the answer then? How do we resolve this disagreement? How do you determine whether a search is unreasonable.
I’d like to take issue with the term “plain text.” If what you mean is that the text of the Constitution is concise and unadorned I agree with you. If what you mean is that the text on its own provides a clear answer you’ve lost me.
You’ve mentioned a number of areas where the courts have clearly misinterpreted the constitutional text, notably in the area of the Commerce Clause. I’ll stipulate that courts make mistakes. What I’m trying to get from you is an explanation of why you think the courts are mistaken when it comes to this particular issue.
I have concluded for myself that one’s position on this matter tends to be religious conviction one way or the other. I tend to think that the evil use to which government is directed regarding national security is a function of the character of the leaders.
Elect a Chicago Machine Scoundrel who believes that political war may be prosecuted by any means necessary because He Alone Is Virtuous Because He Opposes Inequality (for the non-government masses) and you have an issue with those who administer the programs (and the IRS EPA, etc.). Elect a man of character (e.g., GWB) and they follow safeguards.
I’m with Richard Epstein on this.