Who's to Blame For the Surveillance State? Here's the Hard Truth

This post appears on PolicyMic.com and thus can be found here.

Americans are told that the United States is a nation governed by laws, not men. We praise our peaceful transitions of power and our checks and balances. But while we are not ruled by the arbitrary whims of individuals, our laws are not actually what dictate our government’s actions. Instead, we are a nation governed by fear of terrorism. This has led us down a foggy road, opaque with tactically questionable and illegal National Security Administration (NSA) surveillance. Now, our best chance of bringing transparency back to the U.S. is to work within the political system to bring real change to law and policy.

Recent leaks, information releases, and other revelations have shown that Americans have no information about the actions of our own government. Specifically, the NSA’s "metadata’" program of compiling massive databases of information on both domestic and foreign communications is inconsistent with the Foreign Intelligence Surveillance Act (FISA), which was passed to prevent the executive branch from engaging in over-broad domestic surveillance. In order to achieve such a database, the NSA has co-opted complicittelecommunications companies, as well. All the metadata collected could not possibly be relevant to any specific investigation, allowing the executive to unlawfully engage in the collection of personal information on U.S. citizens.

FISA itself is flawed as well. The U.S. legal system is designed to be adversarial: two opposing parties attempting to point out holes in the other’s arguments. In theory, this process allows for the truth to be discovered by the judge or jury. The FISA court does not generally work this way, however. The government presents classified information to the court, with no effective oversight beyond that the government has “simply dotted its i’s and crossed its t’s.” Thus, with no opposing counsel or public scrutiny, the nation’s national security apparati are allowed to operate unchecked by any truly independent body or individual. We now know that in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” Internal executive branch checks are not constitutionally or democratically sufficient oversight for programs such as surveillance and drone operations.

Those who point out the dangers of this lack of transparency and public scrutiny of our surveillance programs are not simply clinging to outdated notions of rights and liberties. In the name of the American people, the NSA has also hacked into the United Nations and the European Union. Along with these supra-national organizations, our spying programs have strained our relationship with Germany, a key economic ally. Perhaps more troubling, the very structure of these surveillance programs give officials no sufficient ability to separate purely domestic communications from those which involve non-U.S. citizens. In fact, the Drug Enforcement Administration (DEA) is using NSA-like legal tactics to collect NSA-like metadata for domestic law enforcement purposes.

America is now living in a time period when citizens are being knowingly surveilled. This is Jeremy Bentham's Panopticon — an institution with a ubiquitous and controlling gaze. Michel Foucault pointed out that living in knowing surveillance leads humans to internalize the institutional rules — that is to say, we begin to act as our surveillers wish us to act. We grow numb to the invasions of personal privacy and accept our role within the state apparatus. This does not sound like a democracy where citizens exert ultimate control and authority over the functions and actions of the government.

I wish to alter Julian Assange’s statement, “privacy for the weak and transparency for the powerful,” to say instead, privacy for the people and transparency for the state. This statement reflects a truth which can be inferred by the philosophy, structure, and very texts of our Constitution. Regarding privacy for the people: the Fourth Amendment protection against unreasonable search and seizure, the Fifth Amendment right against self-incrimination, and the Ninth Amendment protection of personal freedoms. Regarding transparency for the state: the First Amendment freedom of the press, the president’s Article II duty to report on the state of the nation, and the democratic requirement that the people must make informed decisions when voting for or against government officials. Privacy for the people and transparency for the state are requirements to ensure government is subservient to the people who established it.

Whistleblowers like Chelsea Manning, Edward Snowden, John Kiriakou, and others have taken extralegal steps to bring government abuses to the attention of the public. These revelations have not yet inspired mass action in the American people — save, perhaps, for the Restore the Fourth movement . Thus, the American people must be mobilized in order to create a sustained push for sufficient transparency in governance to ensure the protection of our constitutional rights. As Congress returns to work for the fall session, citizens must exponentially increase our activism toward forcing a revolution in how the government conducts its surveillance activities. Without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure.

But we cannot continue to only work on the outside looking in. We must work within the political system in order to effectively bring change to the U.S. The wholesale structural change needed in the federal government to roll back the privacy abuses of the past cannot come without more allies within the halls of power. Think to yourself, which movement has brought more change to the U.S. political landscape: the Tea Party or Occupy Wall Street? The Tea Party did, by recognizing how to play the game of politics to get what they want. As such, formalized organizations which can either put forth or endorse political candidates for federal office must be created and supported broadly.

Walking down the opaque road of secretive governance and diminished liberty should strike each of us as inherently un-American. But you can’t challenge the government unless you challenge yourself. You can’t change the country unless you change yourself. As Cory Booker said in a speech in Washington on Saturday, democracy is not a spectator sport. We each must materially support nationwide organizations which have the structural ability to move Washington toward a more perfect America. In the words of Lt. Ehren Watada, this is an obligation, not a choice.

You say you want a revolution. Well you know, that’s not gonna happen soon.

There’s been a lot of outrage over the recent revelations of NSA surveillance of US citizens with no reasonable suspicion of any particular individual of any particular wrongdoing. And there should be. In 2008 Obama presented himself as the anti-Bush, but between Guantanamo, drones, and domestic surveillance, he’s possibly more Bush than Bush!

While some are grappling with whether the program is legal, I view that as simply not the point. That’s not to say that assessing the legality of governmental action isn’t important, of course. But there are at least three standards by which a government action can be judged: legal, Constitution, and acceptable. Regardless of whether the program is legal, it’s simply not acceptable—and I’m very certain a majority of Americans would agree with my poorly articulated argument here. (I’ll leave the Constitutional argument for when I’m not studying for the bar exam and have sufficient time to go through the relevant case law in order to make a reasoned analysis. But our Colbert gut tells us this doesn’t feel Constitutional within the spirit of the 4^th Amendment.)

I’d venture to guess that there are several areas of dissatisfaction a majority of Americans have with the federal government, which has been unresponsive to public opinion. But this grievance, I think, crosses party lines most easily. Because of the gradual decline of civil liberties since the passage of the USA PATRIOT Act—which has continued regardless of the partisanship of either the legislative or executive branches—many want  drastic change in our federal government’s power to unilaterally collect information on citizens without individual suspicion. Such change can either occur inside the system or outside the system. The problem is that to work within the system, we must repeal all these laws and court decisions. This would need to be an act of Congress to be either signed by the president or popular enough to override a veto. (Technically a Constitutional amendment is available, but that is harder still). But we’ve had the problem, best exemplified by Obama himself, of electing people who say they’re against such programs, but vote for them anyway.  Namely, any libertarian, progressive, or small-government conservative should not be supportive of such programs on ideological grounds. And yet  here we are.

So what’s the other option? A full-scale change of the status quo—that is to say, work from ‘outside the system’. Yes, some voices have asked about a new American Revolution or an American Spring. For better or worse, that’s not going to happen anytime soon. The governmental transitions academic literature tell us that GDP-per-capita is one of most strongly correlated variables to whether transitions actually occur. That is to say that wealth is a factor in whether full-scale revolt can actually lead to change. Why? Simply because extra-systemic change, especially full-scale revolt, questions the whole system itself. We know that when you've got nothing, you've got nothing to lose, but most of us have something, and so we feel we have something to lose in the event of real revolution. Sure, if you’re unemployed, have broken spirits, or have more debt than you can ever hope to repay, you’re fixin’ for  a revolution—because you might feel you have more to gain from a possible victory than you have  to lose  from either a victory  or defeat. But when you own property, or have a family to feed or have a pension, often that status quo protects you more than exposes you to risk. This is the force of moderation. The idea of being jailed for a short time as a political activist might be romantic to those with few responsibilities, but for many that means no food on the table for their children. 

As such, only when a plurality of Americans feels there's more to gain in overthrowing the status quo than to lose from the attempt, will something extra-systemic actually happen. We’re a far road from Tahrir Square. Evidence of this assertion being true might be as recent as the Tea Party and #OccupyWallSt movements. While there are many other important variables I won’t consider here, note that the Tea Party worked within the structures of governance, whereas #OccupyWallSt questioned them to the core. One was strategic, the other radical. Which has had more effect on American politics, I think, is clear. (Pssst! The Tea Party.)

The tragedy, of course, is that we have been jaded by the idea of change from within. That was the actual mantra of Obama, and now he’s the exact thing we want to change. 

The Social Contract Revisited

Hello! By using America’s services, protections and opportunities, you agree to the following rights and obligations, and any policies, laws or amendments thereto that may be agreed upon through explicit legal processes. Provisions are made for updates in the future, and you will be able to find the most current version of this agreement in state and federal law.

Do you remember seeing that language at birth? No? What about at 18 years old, the age of adulthood in the US? No? That’s odd…

What is a contract?

Contracts wasn’t my favorite class in law school, to be honest. I claim no authority in the field. But a contract is really just the creation of one or more legal obligations between parties.

A common mistake is to assume that contracts require explicit consent. All product ‘terms and conditions’ are forms of contracts, and simply by using the product are you considered to assent to such terms and conditions. We all probably make hundreds of contracts each day. For example, let’s say you sit down at a buffet, the waitress brings you water, and then you begin to fill you plate. A bloated hour later you are full. How would it go over if you simply strolled out of the establishment without paying? Probably not well. A contract was formed through your actions and the tacit understanding that an exchange would occur: food for cash. You didn’t sign anything and the waitress didn’t make sure you explicitly understood that monetary compensation would be expected when you finally tapped-out.

In theory, the law would step in and require you to pay for the buffet if such a suit were brought to court. Why? Because you gained a benefit, conferred by another, without offering compensation in a circumstance when compensation was reasonably expected. In a term of art, you were unjustly enriched.

What is a state?

A state is a legal structure which has a population and a monopoly on the legitimate use of force within its territory. Why would anyone cede the ability to unquestioningly use force to some legal structure? Let’s ask the Declaration of Independence:

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

So people would theoretically enter into a state to secure life and liberty. And the state claims only power which comes from the people within it. That’s fine and dandy, but if a body is given power, it would likely abuse it in some way, wouldn’t it? It might even go so far as to disregard its original purpose. What do we do when this happens?

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

So when a government destroys liberty instead of securing it, the people have the right to change it or get rid of it all together. That unrelated concept of a contract is beginning to sounds familiar; rights, obligations, and remedies for breaches. But how do we know when a breach occurs, when to oust the state?

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

This is really just a recommendation and then a warning: Don't get rid of your government for stupid reasons, but to be honest people have a predisposition to tolerate a government that sucks rather than to get off the couch and change it.

OK, this state thing sounds like a contract, but I didn’t agree to it!

Oh, you did—you just don’t know it yet.

Just like at the buffet, a contract was formed through your actions and the tacit understanding that an exchange would occur. What actions? Voting, paying taxes, or benefitting from services paid for by taxes, etc. all indicate a use of the service provided for in the contract and tacit consent of the contract itself. By partaking in the state’s services, protections and opportunities you have been enriched at the cost of the other parties in the contract. It’s a quid pro quo, a reciprocating duty: you must uphold you end of the bargain. Elizabeth Warren put it nicely (paraphrased):

You built a factory out there? Good for you. But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn't have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did. Now look, you built a factory and it turned into something terrific, or a great idea? Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.

If you don’t like this contract, there are of course ways out. Otherwise, it would be coercive! First, the Declaration of Independence notes, supra, when you have the right to destroy the whole contract. Second, the Constitution explains the processes for changing the specific terms while maintaining the contact generally. Third, you can stop benefitting from the contract, and thus your reciprocal obligations would no longer be required. Yes, I’m suggesting moving out of the country.

Note: The Westphalian state/social contract paradigm has shifted since the time of the Declaration of Independence due to the philosophy embodied in the Responsibility to Protect. Previously the contractual relationship was only the business of the state and the people within its territory. But now the UN has asserted the right to be involved in this relationship. This is quite new, but we have seen a growing trend of humanitarian and military interventions in situations which ordinarily would have been viewed as wholly domestic issues. 

Some problems with social contract theory

First, no person has a choice as to what political system into which that person is born. Individuals become beneficiaries (or victims) of state probably immediately. Thus affirmative action must be taken to change the terms or change contracts. But how would we remedy this? The choices are limited: anarchy, governance with no claims of the consent of the governed, or to create a stateless land of wild children, who upon a certain age would be required to choose a state to enter. Antarctica is a bit too cold this time of year for that, I think.

Second, there are opportunity costs to leaving a given territory. Even if someone studied all the social contracts out there, and picked their favorite one, there are costs and hurdles to getting there. This is especially true for the economically disadvantaged, who are more ‘stuck’ with a state in which they often have decreasing voice. But relocation is pretty common. If nothing else, history is the story of human migration. If you’re an American, unless you're full Native or fully descended from those brought here unwillingly, your ancestors made this exact choice.

Third, at times it is effectively contract of adhesion. There are so many parties to the contract that any change requires a large number of parties to agree or any change. Each individual is only 1 in over 300,000,000 parties, and like most contracts, you can’t unilaterally change its terms.

Fourth, one might argue that a contract without explicit consent is in itself presumptuous or immoral. There is some ground here, but that would solve nothing. For each contract we presently enter unknowingly, there are almost just as many that we simply click through or sign on because they are too long or we aren’t interested. The social contract is no different.

There are probably others, too…

Thoughts

Even if you view the social contract as a noble lie, it at least serves as a useful understanding of why it is deplorable for individuals to choose to ignore the opportunities and advantages that have been provided to them with taxpayer money and try at every corner to get out of any reciprocating obligation.

I understand, and am sympathetic to, disagreeing with almost everything that a government does and feeling that government has not upheld the values in the founding documents. I often admire movements like the Tea Party and Occupy because they are actively trying to change the contract for those very reasons. Alternatively, with the services and opportunities provided in other countries, I completely understand leaving the US for greener pastures.

But it is wholly unfair to continue to reap benefits provided through government services, then act as if you don’t—only to make yourself feel justified in trying to not pay your fair share back into the system. Don’t think what is presently asked is fair? You can work to change that, too—but keep in mind the costs of what you have gained a la the Warren quote above. While many states go so far as to require periods of national service, all I ask from Americans is to recognize benefits derived, to not be so bitter about reciprocating, and to please work to change the system for the better, should you choose to remain.

The current electoral and political system in the US is approaching, if not already in, a state of complete dysfunction. That is not to say it is irreparable, of course. But what we need, more than ever, is a citizenry who will roll up their sleeves and invest time and money into getting America back on course by either fixing our current institutions or abandoning them for wholly new ones. If you would rather leave, that’s fine. But we have neither the time nor the inclination to deal with individuals who wish to cheat the system by gaining from its outputs and yet have no desire or intent to pay back into the system their fair share.

The New World

Information has broadened

More people are able to access information than ever before. The internet, social media and cell phones have distributed information wider and faster than imaginable only twenty years ago. Information and news about any incident on any part of the Earth can travel to your hand or home instantly. While many in the world remain without access or ability to receive such media, the Arab Spring has shown that around the globe, the people increasingly control messaging.

No longer must we rely on the ‘gatekeepers’ to tell us what is important and what is interesting. Websites like Reddit, Twitter, Digg, and more allow we the people to decide for ourselves.

Power has democratized

According to Freedom House In the early 1970s, there were around 40 democracies. Presently, there are over 120, with more on the way. Increasingly, people are making decisions which effect governance and foreign relations. Periods like decolonalization, the fall of the Soviet Union, and the Arab Spring show a clear march toward self-determination and democracy. Increasingly, regular people will be able to have a voice in the direction of their government. Governments around the world must listen to their people.

No longer must we rely on elites to communicate our policies and values abroad. We can communicate directly to foreign publics, unmediated and unadulterated, to express our interests and sentiments abroad regarding international concerns. Speaking directly to power now means speaking directly to the people.

Governance has opened

WikiLeaks and Anonymous have shown that now anyone can publish mountains of uncensored data available for the whole world to see. Julian Assange published his leaked information for the world’s publics to see without gatekeeper censorship. If governments do not open themselves by passing Open Government laws and declassifying non-essential material, people like Assange, Bradley Manning, and groups like Anonymous will do it for them.

During the Vietnam War-era, the publication of the Pentagon Papers by the New York Times shined the light on the actions of the U.S. Government in Southeast Asia. No longer must we rely on the institutional press to disseminate this information. If we the people wish to know the working of our governments, we have the right, the will, and the power to find out.

Resistance has crowdsourced

The Green Revolution, the Arab Spring, and Wisconsin's protests and #OccupyWallStreet have shown that leader-less protest, resistance, and revolution are all possible and successful. We now can simply crowdsource to define our grievances, goals, desires and needs. Top-down structures are anachronistic and are un-democratic ways to resist the halls of power. Indeed, the present paradigm of such power does not know how to approach a truly egalitarian movement, and thus renders the structure impotent to change in the face of a new global structure.

In the past, revolutions mirrored states: they had a hierarchical structure of authority. No longer must we hope for a Washington, Jefferson, or Madison to come along and lead our movement; we lead the movement ourselves, collectively.

The new world

In the old world, governments, media, military, and economic power was held by elites, influenced and benefitted by each other. Elections and commercial choices were limited and often illusory. However, the changes above are upon us. All of these changes have supported and furthered each other. The combination of all of them has shown to us a new world paradigm of power approaches. We must take this opportunity. We must assert our rights by making our grievances known through this new egalitarian paradigm of power and compel power structures to return to the hands of the people. If we do this we will bring forth a world where real power exists in the hands of all of us, and structures are created to benefit the masses. If we stand up and assert our grievances, we can work together to create the new world.

Welcome.