July 22, 2013

NSA, FBI, the American People, and Double Secret Probation

Since the latest ramping up of concerns regarding the entire gamut of issues surrounding the surveillance activities of USA law enforcement and intelligence agencies (and by extension, similar activities conducted by the equivalent agencies in other countries), untold millions of words on these topics have been spoken and written, including some thousands of my own.

And -- all over the world -- we can argue pretty much until the cows come home about what was legal, what wasn't legal, how much government leaders knew or should have known, and why members of the public paid so little attention to laws openly passed that specifically authorized such activities.

Here in the USA, public observers of the PATRIOT and Homeland Security Acts should have been well aware of what FBI, NSA, and other agencies were being ordered to do by Congress -- despite current dissembling by some of those laws' authors. We warned of these programs at the time. And odds are, most or all of these activities will ultimately be declared legal by the courts.

It can be argued that one clear benefit of Edward Snowden's leaks was to confirm in some detail (significantly diluted by various related wildly hyperbolic claims and erroneous interpretations) that such programs in one respect or another had actually been implemented and deployed.

Yet this still doesn't get us to the heart of the matter, to the foundational questions we must ask ourselves no matter what our nationality and personal feelings about our own nation's intelligence operations.

To really get there, we need to revisit a concept made famous in the classic film "Animal House" from 1978 -- "double secret probation."

As the character of Dean Wormer explained -- freely paraphrased by yours truly -- double secret probation is essentially the condition of not even knowing that you are under suspicion, and that you are the subject of continuing investigation outside the normal context of traditional law enforcement activities.

Of course, Wormer was talking about a rather freewheeling fraternity, not the American people in general. But the analogy still seems apt, and is at the heart of our dilemma regarding government surveillance.

First, only an utter fool would argue that there is no need for any surveillance in any context, given the real world of terrorism, black market fissile materials, and all manner of other genuine threats.

Secondly, stipulating that actual threats do exist is by no means to agree that every asserted threat being waved as an excuse for surveillance is genuine or not overstated, especially given the vast amounts of power and money deeply entangled with agencies' adversarial claims.

And at the core of our attempts to harmonize these two realities is our friend double secret probation.

For it is frequently not the existence of government surveillance per se that is so problematic, it is the deployment of such surveillance without the public being clearly and definitively aware that the surveillance is taking place, rendering us impotent to fulfill our oversight of government that makes all the difference between democracy and tyranny.

Significantly, many of our government leaders have put themselves into the role of Dean Wormer -- and placed their entire citizenry on "double secret probation" -- not trusting the people to appropriately judge the actual threats or to accede to a level of surveillance activities that can be reasonably justified.

It is precisely this attitude -- again even more so than the actual surveillance much of the time -- that is so unacceptable and insulting to us all.

Once this attitude has taken hold, it tends to spread and permeate legislators and other government officials, who become convinced that only they are capable of making these decisions, that the people cannot be trusted to even know what's in their own best interests.

So we see spectacles like major Internet firms begging for the right to even explain in broad terms what sorts of information demands are actually made of them by governments, and Kafkaesque legal arguments by agencies attempting to prevent the public from gaining any practical sense of the full extent to which telephone and Internet systems are under metadata and/or content-based observation and data collection.

Some hardcore surveillance proponents argue that more transparency in these realms would compromise the efficacy of their information gathering efforts. And they may be correct, to one extent or another -- in various specific situations.

But simply being "correct" in this context is not enough. In fact, all of government -- at least democratically oriented governments -- must ultimately be based on compromise (a fact apparently forgotten by many participants, to be sure), and this means that even surveillance based on seemingly laudable motives must take a back seat to the people who are supposed to be driving this bus -- the public itself.

Appropriate transparency about surveillance doesn't mean revealing deep operational details, but it does require making sure that the public understands what is actually being done.

If you want to collect our telephone calls, Internet, and other transactional metadata and/or content, then make your case -- we the people will make the decisions. We're the ones who pay your salaries. Your positions exist with our concurrence, not the other way around. We are, frankly, at least as intelligent as you are.

And if the result of the transparency we demand is that you cannot achieve quite the level of all-encompassing surveillance of which you dream -- so be it.

In the name of democracy, and here in the USA the Constitution and civil rights, you must come to terms with the fact that imperfection in surveillance is part and parcel with the fundamental precepts of our nation.

So to law enforcement, intelligence agencies, and Congress -- discuss with us the kinds of surveillance you feel are genuinely needed. Treat the American people as your partners, not as your adversaries or village idiots.

If your arguments are valid, we'll back you to the hilt.

But we demand balance not banality, reasonable transparency not legal trickery.

We're all in this together.

And with all due respect, to use the vernacular -- please stop jerking us around.


Posted by Lauren at July 22, 2013 01:05 PM | Permalink
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