In my recent appearance on Bloomberg News, where I called Edward Snowden a “national hero,” I tried to distinguish between the totalitarianism George Orwell conjured in 1984 and the “post-totalitarian society” Vaclav Havel depicted in his zamizdat manifesto of 1978, “The Power of the Powerless.” I actually mentioned Havel by name, hoping to cloak myself in his reputability.
Some friends and colleagues have urged me to explain this distinction, as a way to grasp both the scope of the NSA’s illegal searches and the nature of Snowden’s achievement-—that is, his heroism. I gave it a try and sent the result to my old friend Mike Fennell, suggesting he read it backward and asking for comments. His quick response was so bracing and stimulating that I have appended it to this post.
I begin here, in Part I, by assessing the charges against Snowden, from the personal to the political. By doing so, I hope to illustrate the extent to which we, the people, have become complicit in spying on ourselves, thus adept at disciplining ourselves on behalf of the state. I hope, that is, to illuminate the defining characteristic of a post-totalitarian society-—relying on ourselves to keep the peace. In rehearsing these charges, I move from the ridiculous to the sublime.
(1) Snowden contributed money to Ron Paul’s presidential bid, and thus validated this Republican’s racist past. My comrades on the Left have pressed the charge most consistently, in part because, after Brecht, they’re uncomfortable with the very idea of heroism. I would ask them to dispense with their worries about heroes and consider this Nietzschean axiom: “There is no ‘being’ behind doing, effecting, becoming: ‘the doer’ is merely a fiction added to the deed—the deed is everything.” I would also ask them to remember the simple fact that Paul’s intellectual background wasn’t common knowledge until press coverage of the Republican primaries brought it to light.
(2) Snowden is a “grand narcissist,” just looking to get attention. This was Jeffrey Toobin’s early accusation in The New Yorker, which I’ve heard repeated many times since. David Brooks hinted at the same conclusion in his New York Times column on Snowden, characterizing the man as a “solitary naked individual,” a product of “the atomization of society, the loosening of social bonds.” Quite apart from the vacancy of narcissism as a concept or a psychological category, what kind of narcissist risks his future and even his life to save constitutionally guaranteed rights of privacy and free speech from their enemy in the state, thus upholding the founding principle of American politics—-viz., the sovereignty of the people, the supremacy of society over the state?
(3) “He signed a contract and didn’t keep to it,” or, “He violated an oath and betrayed his employers if not the U.S.” Brooks peddled this line in the same column cited above, but I’ve heard it dozens of times in person, most recently in the Green Room at Bloomberg News, from a Senior Vice-President at MasterCard who held herself up as a model of integrity: “I signed a confidentiality agreement just like he did, and I wouldn’t break it.” I asked her how she’d feel if she knew that abiding by this agreement would harm thousands of people by violating their most basic rights-—if she knew, consequently, that carrying out her duties as a corporate vice-president put the public interest and the American republic itself at risk.
She waved that question away, but it can’t be evaded. The most binding oath, the one that military men and women take, requires them to disobey the orders of their superior officers if they believe that carrying out such orders would violate the rules of war, which include protection of the human rights of non-combatants. Snowden might have betrayed the interests of his employer, Booz Allen, but he upheld a higher good, a more compelling interest, by refusing to keep the NSA’s illegal searches secret, thus refusing to sacrifice the rights of his fellow citizens in the name of Booz Allen’s bottom line.
(4) By seeking asylum in Russia, Snowden has undermined any claim to be interested in the sanctity of human rights; for even (or especially) in its post-Soviet phase of development, this state acts as if the rudimentary rights of free speech, privacy, and fair trials are a joke. The charge might hold if Snowden had designated Russia as his final destination, or had endorsed the Putin regime, or had leaked NSA documents to Russian authorities. But of course he hasn’t done any such thing (and here I rely on reporting from the New York Times). He sought asylum there because the U.S. government revoked his passport and prevented his departure for his preferred destination(s).
(5) Snowden is no hero of human rights because he can’t be compared to the civil rights leaders who deliberately broke the laws and gladly accepted the sanctions that followed, including jail time; to Daniel Ellsberg, who leaked the Pentagon Papers to the Times; or to the Eastern European dissidents (like Havel himself) who destroyed Soviet totalitarianism by peaceful but unlawful means. Snowden’s civil disobedience does not qualify him for inclusion in this pantheon because he fled the country rather than stay at home and stand trial, where he could make his case to the American people. Jelani Cobb of The New Yorker and the University of Connecticut has offered the most forceful version of the charge; but I’ve also heard it from several academics and prize-winning historians who have written eloquently about civil rights struggles. Here’s how Cobb states it:
“The cornerstone achievements in American rights were attainable precisely because their proponents refused to avoid consequences for their dissent. . . . During the civil rights movement, the young activists of SNCC adopted a ‘Jail, No Bail’ strategy not only because of the financial burdens of raising money but also because their willingness to remain in prison, to suffer for their cause, eroded the moral standing of the men responsible for their arrests. . . . Daniel Ellsberg endorsed Snowden’s actions, but Ellsberg himself remained within the U.S. after he released the Pentagon papers. Had he fled the country, the Nixon administration might not have pursued the actions that ultimately brought its own demise. . . . This year marks the 50th anniversary of MLK’s ‘Letter From a Birmingham Jail.’ A half-century after supporters smuggled King’s out of the facility and oversaw its publication, it remains the clearest distillation of the meaning and implications of dissent. Edward Snowden is a figure of current events, but if he wishes to become a figure of history or, more crucially, advance the important arguments he has forced us to think about, he should return to the U.S. ‘Dispatch From an Undisclosed Location’ simply doesn’t carry the same weight.”
But the civil rights standard analogy can’t work in this instance, unless we’re willing to broaden it to include Malcolm X’s prescient efforts to “import the social question” by accusing the U.S. of human rights violations under the terms of the UN Charter.
Why won’t the civil rights analogy work? First, there is the tricky difference between foreign and domestic policy. These have been mixed up in the Snowden case, of course, because the FISA guidelines permit routine surveillance of exchanges between US citizens and foreign nationals by the NSA; but one of Snowden’s revelations, as the Obama administration’s White Paper acknowledged, is that the distinction makes no difference. The FBI spied on MLK, to be sure, but if he had leaked or documented his knowledge of COINTELPRO, would he have been subject to indefinite detention, extraordinary rendition, or a military tribunal, on the grounds that he had compromised national security? Was he ever formally accused of espionage, was he ever indicted or incarcerated for such a capital offense?
Edward Snowden has already been formally charged with espionage by a government that has yet to acknowledge any limits on its legal scope or military power in fighting a “war on terror.” If he returns to the U.S. to be tried for this charge, his trial cannot be public because on national security grounds, the NSA, the CIA, and the Justice Department will not present evidence in a court of law that they have refused to disclose to the Congress, let alone the press and the larger public.
For Snowden to reenact the example of “civil disobedience” would, then, be to silence himself and his sources. Is that what we wanted or expected from Daniel Ellsberg, who had the cooperation of the paper of record? Who could count on the support of the Supreme Court as well as the liberal media, not to mention a social movement that had made the war in Vietnam the central issue of the time? Is silence what we want from this moment of doubt about the reliability and the resilience of these media?
Second, in our circumstances, the scope of the state’s power is aided, abetted, approved, and excused by the very liberal media that, in the civil rights era, took the other side. Edward Snowden already stands charged with espionage by the United States. But his crimes against the state are clear only if you grant the extant, infinite definition of state power claimed by the masterminds at the NSA, the judges at FISA, Obama’s lawyers in the Justice Department, and all the compliant pundits, from Jeffrey Toobin and Thomas Friedman to David Brooks-—not to mention David Simon and his ultra-liberal ilk-—who can say or do anything they want on behalf of this Leviathan because its dimensions must remain unknown, even to its most ardent defenders.
So, in the absence of the old-time urge to speak truth to power, except where the McClatchy Newspapers get published, what’s a dissident who has massive evidence of unconstitutional and unlawful government conduct supposed to do? Stay home and be forever silenced by the merry collaboration of the executive branch and The New Yorker? Or go into exile, with some hope of asylum because there are nation-states with grievances against the US?
(6) Edward Snowden is invoking a right to privacy that was expressly denied by the Supreme Court in Smith v. Maryland (1978), when it decided that a customer’s provision of personal information to telephone companies was voluntary. From this standpoint, there is nothing illegal or even untoward about the NSA’s bulk collection of telephony metadata. The legality and legitimacy of undisclosed government surveillance with respect to telephony have been repeatedly confirmed, moreover, by formal Congressional approval, first of the FISA courts in 1978 and then Section 215 of the revised Patriot Act: the wire has long been a staple of law enforcement and intelligence gathering. Snowden’s breach of confidentiality and national security is all the more egregious, then, because he is defending a right that doesn’t exist against a state that hasn’t violated the law, whether statutory or constitutional.
This specious claim is the basic content of David Simon’s blog rant against Snowden, which Thomas Friedman then borrowed for his Times column; of the White Paper cited above; and of Judge William Pauley’s recent decision in favor of the NSA.
Here’s Friedman introducing Simon:
“So I don’t believe that Edward Snowden, the leaker of all this secret material, is some heroic whistle-blower. No, I believe Snowden is someone who needed a whistle-blower. He needed someone to challenge him with the argument that we don’t live in a world any longer where our government can protect its citizens from real, not imagined, threats without using big data — where we still have an edge — under constant judicial review. It’s not ideal. But if one more 9/11-scale attack gets through, the cost to civil liberties will be so much greater.”‘
Here’s Simon himself:
“You would think that the government was listening in to the secrets of 200 million Americans from the reaction and the hyperbole being tossed about. And you would think that rather than a legal court order, which is an inevitable consequence of legislation that we drafted and passed, something illegal had been discovered to the government’s shame. Nope. … The only thing new here, from a legal standpoint, is the scale on which the F.B.I. and N.S.A. are apparently attempting to cull anti-terrorism leads from that data. … I know it’s big and scary that the government wants a database of all phone calls. And it’s scary that they’re paying attention to the Internet. And it’s scary that your cellphones have GPS installed. … The question is not should the resulting data exist. It does. … The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised. And to that, The Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent. We don’t know of any actual abuse.”
It is of course true that we, the people, don’t know of any actual abuse, but that is because the whole program has been conducted in secret: we don’t know anything about it. Simon’s “more fundamental” question can’t be addressed, let alone answered, until we do know enough to make a judgment. Friedman doesn’t even raise a question because he takes it on faith that “our government” must be protecting us from “real, not imagined threats,” as it clearly did in 1964 (Gulf of Tonkin), 1983 (Grenada), and 2003 (Iraq).
The White Paper is by it nature more circumspect than these cheerleaders could be. Still, it’s as mindless as the opinions offered by Friedman and Simon.
Part II of this document could be called “Why the Program is Legal.” The point here is that the collection and analysis of telephone metadata by the NSA at the request of the FBI and with the approval of FISA courts complies with Section 215 of the revised Patriot Act. Notice that at 14 pages, this is by far the longest part of the White Paper, composing about 60% of the total—-by contrast, Part III, which could be called “Why the Program is Constitutional,” is four pages, only about 17% of the total.
Part II uses the very specific language of Section 215 regarding “authorized investigations,” “tangible things” discovered in searches—-yes, electronic storage qualifies as such a thing—-the “relevance” of any suspect, lead, or information in authorizing investigations, and “prospective orders” of surveillance based on reasonable suspicion and/or probable cause. The rhetorical move here is always to compare what the NSA is doing to routine police work, where these legal categories and imperatives determine the contours of any investigation.
The analogy cannot hold, of course, and the White Paper authors, whoever they may be, acknowledge this awkward fact in two interesting ways. On the one hand, they keep canceling their own comparison with invocations of the state’s interest in national security—-“even if” you could object to our Law & Order analogy, they keep saying, we’d have to tell you about terrorism and explain why the DA’s rules are moot-—and on the other hand they exhaust themselves in an increasingly circular argument about relevance.
The “relevance” argument takes up seven pages of the White Paper, about a third of the whole. Why? Because the category has not hitherto applied and cannot apply to the bulk collection of data, meta or no. Until now it has borne the moral and legal weight of specific circumstance, not crimes still uncommitted by conspiracies that haven’t yet convened. And because “relevance” is the central criterion by which a judge outside of FISC decides whether to authorize an investigation using modern methods of surveillance (short of bulk collection). If legal authorization of an investigation is predicated on relevance—particularity, specificity, actual or impending crime—but the bulk collection of (meta)data denies the very possibility of relevance because it subjects virtually everyone to random search, the argument becomes hopelessly circular.
The perfunctory Part III of the White Paper, on the constitutionality of The Program, validates the circularity of Part II.
There are three claims here. First, a Section 215 order for the bulk collection of telephone metadata “is not a ‘search’ as to any individual” because the Supreme Court expressly held in Smith v. Maryland (1979) that telephone users have no reasonable expectation of privacy because they’ve already relinquished information to a third party (the telephone company). Second, the 4th Amendment bestows only a “personal right” against unlawful searches—a right that “must be invoked by an individual,” and thus “may not be vicariously asserted” in the name of any others (the key cite is Minnesota v. Carter ) Third, “lawful investigative activities conducted in good faith” do not violate the 1st Amendment.
So if you thought that the NSA surveillance program was an intrusion on your constitutional right to privacy and protection from unlawful searches, Not To Worry! It can’t be such an intrusion, you see, because the Government—-the word is capitalized throughout—-doesn’t know who you are: it doesn’t sample the verbal content of your telephone conversations, and you don’t know what the Government is doing because it can’t tell you, for your own good.
(7) Snowden’s actions don’t acknowledge that we are engaged in a “war on terror”—-a war against unconventional combatants, unseen enemies, decentered cadres, trans-national movements, and so on, all of which require a new balance between national security and individual liberty. His theft of NSA data was profoundly naïve, in this sense, and therefore dangerous; for the bulk collection of telephony metadata could well have prevented the catastrophe of 9/11, and subsequent terrorist attacks.
This is the argument presented, or rather the assumption embodied, in Judge William Pauley’s recent decision rejecting the ACLU’s claim against the NSA’s program. It is as empty, as specious, as the notion that the NSA has been operating within statutory law or constitutional constraint. Robert Mueller’s testimony notwithstanding, in 2000 the NSA was already able to identify the location of a suspected terrorist who became one of the 9/11 hijackers, and was also able to identify his father’s residence, where most of the suspect’s calls were directed. There is, moreover, no evidence whatsoever that the bulk collection of telephony data since then has prevented another attack—-none.
So the argument for the NSA’s secret program boils down to a justification of a “war on terror.”
But a “war on terror” cannot be won. There are no military means with which any state can defeat a terrorist movement, as the most cursory look at the historical record would show, from the Russian anarchists to the IRA, the Irgun, and the PLO. Terrorism is the weapon of the weak. It subsists by erasing the distinction between state and society, combatant and civilian, public and private, enemies and innocents. But that is precisely the logic offered by the NSA when it insists that the bulk collection of telephony metadata is necessary because the difference between enemies and innocents is unknowable. No state can long indulge this terrorist logic as the justification for its constant deployment of armed force; for by doing so it places its legitimacy—-the consent of the governed and the acquiescence of the oppressed-—at risk. It solicits and enables not merely active “dissent” in the form of political opposition, but everyday resistance in the more insidious and effective form of cynicism or resentment. The politics follow from the resistance, not the other way around.
In Part II, I will take up Havel’s notion of a “post-totalitarian society” by way of Antonio Gramsci and Louis Althusser, the presiding intellectual spirits of “The Power of the Powerless.” For the time being, I hope that this summary of the charges against Edward Snowden indicates two salient facts. First, both the defense and the critique of the NSA’s bulk collection of metadata is a symptom of the dispersal of power from state to society, not a new rationale for or critique of state power, as against civil society. Second, the critique is more promising than the defense, simply because it assumes that our consent to and complicity in surveillance is predicated on our prior knowledge of it.
HERE FOLLOWS MIKE FENNELL’S RESPONSE:
Reading this backward makes the last sentence, especially, and the last paragraph sound too optimistic. I would assert the opposite: The critique of the program cannot be the more promising development precisely because it arose only after we “read the charges” so to speak–had them made “real” by seeing them in print. This is a child’s excuse for willful ignorance. The crimes were always there and we knew it–every 9th grader has read Animal Farm and we all grew up on “Three Days of The Condor” and James Bond. Dick Cheney especially didn’t fool anyone. We liked the idea of Darth Vader at the helm.
But that’s why the re-authorization of sec. 215 of The Patriot Act is so troubling. The childish, willful ignorance was a representative act by Congress. They chose to not know what was in there as an act of good faith representation. They knew, as we all do, that to know what the state is up to is to be responsible for it and, as Americans, to dissent, or at least open ourselves to dangerous argument. Once we/they take that step, the next attack is on them/us.
That is to say, reading backwards also got me thinking about what could possibly account for the bizarre language you cite here–from the critics of Snowden to the District Court rulings. I get the creepy feeling that the words themselves don’t make any sense because we are beyond speaking rationally. Perhaps the “Paranoid Style” has met technological promise?
So I think the route from here goes through Chapter 5 of The World Turned Inside Out and The Technology of Desire in particular (again with the Althusser). I think our faith–and what else can you call it really–in the NSA, and our ambivalence about the consequences of surrender to it, looks like an Oedipal struggle with the Cyborg. The idea of post-totalitarianism–leading the state in our own subjection–almost seems sensible if we believe that the enemy here is unknown, unseen yet omnipresent. Such an enemy might call for total resistance, total war, total control–all things we know ourselves to be incapable of. We have the technology now to “Report Suspicious Activity” all around, and to insure that “Loose Lips (don’t) Sink Ships” that we didn’t have in the olden days of omnipresent enemies. All we have to do is trust the “being” that has total capability.
If my reading is not too far fetched, the thing we do not trust–what really scares us–is the man behind the curtain; Snowden in this case. That’s why his critics insist on minimizing the case only to his motives and personality and ignore their own complicity.
And what do they imagine there is in this Matrix if not people like Snowden who will always muck it up somehow? I mean follow their reasoning to the end–what’s left after the human error, desire, avarice, prurience is deducted from this system?
I don’t think it’s much of a stretch to say that the District Court(s), Friedman and others and the White House itself mimic in the broadest sense, Sara Connor: “He was more of a father than any man could be”–in a flash of light an unstoppable assassin becomes an indefatigable protector. Totally whatever you need him to be (as long as his/its properly programmed CPU lasts).
I feel a ghostly “Hamletization” coming on so I’ll stop while I’m behind.