The Edward Snowden
and NSA dragnet surveillance story that dominated headlines last week was
framed in terms of a tension between national security and civil rights: Judge
Richard Leon's ruling that the extent of
surveillance may be unconstitutional; new revelations about the extent of the
agency's spying on foreign governments and businesses; and the list of reform
recommendations submitted by a blue-ribbon panel to President Barack Obama.
The other angle
that's been a thread throughout is one of technological determinism: the
technology is there, says the government, so the NSA has in some ways been "on
autopilot," as Secretary of State John Kerry put it in November. The
technology should be limited, goes the other side of the argument, if indeed it
can be now.
perspectives are plainly legitimate, but also insufficient. While the NSA
collects data against foreign intelligence threats generally, the type of data
that effectively requires massive collection and storage of individual
communications has been presented, for
example by Gen. Keith Alexander, in terms of the need to connect the dots to
stop another 9/11.
So the extent of NSA
surveillance corresponds logically to the extent of the ill-defined successor
to the war on terror: When the enemy can be anywhere, the state looks
The boundary of the
U.S. response to terrorism is the critical frame through which to view the vast
impressionistic canvas upon which the NSA attempts to connect the dots: The
root issue is not the balance between national security and civil liberties but defining the boundaries of the U.S. response to terrorism.
President Barack Obama's
speech at the National Defense University on May 23, his major national
security speech of 2013, seemed to
represent a shift in a different direction. "We must define the nature and
scope of this struggle, or else it will define us," he intoned, "mindful of
James Madison's warning that ‘No nation could preserve its freedom in the midst
of continual warfare.'"
It was accurate and
ominous: Just days later, on June 5, the Edward Snowden story broke, revealing
the massive footprint of the NSA's electronic surveillance.
To which freedom was the president
referring in his speech? The obvious answer would be an external freedom from
attack by an enemy. But the Madison citation comes from his "Political
Observations" of 1795. The sentence is the final line of a passage that discusses not freedom
from external foes, but looks inwards to domestic freedom from oppressive
executive government whose discretionary power is inflated in war: "Of all
enemies to public liberty, war is perhaps the most to be dreaded."
Obama identified external
and internal risks to freedom; both make sense. Indeed, we tend to think of the
two in terms of a proportional relationship in times of war, that one is
balanced against the other.
The problem with applying
this balancing model in the context of the "struggle" to which the president
referred is the fragmentation of the enemy as a clearly definable concept.
The core issue here is
specificity. A clear and concise definition of the enemy both aligns the
state's resources against a clear target, and gives a reference point against
which to weigh concerns over infringement of civil liberties and keep executive
power in check.
Obama's speech in May
voiced an aspiration to specify more narrowly who the enemy is: "We must define our effort
not as a boundless ‘global war on terror' -- but rather as a series of
persistent, targeted efforts to dismantle specific networks of violent extremists
that threaten America."
The speech was, however,
inconsistent about how to define this effort. The concept of defeat, with its
connotation of war, was rejected: "Neither I, nor any president, can promise
the total defeat of terror" and subsequently relied upon: "First, we must
finish the work of defeating al Qaeda and its associated forces." Confusing. In
this struggle will there remain terrorists who threaten the US after al Qaeda
and its franchises are defeated, or not?
The crux of the problem is
that the concept of defeating an enemy is unpersuasive when the enemy has no
clear bounds: Is the enemy al Qaeda? Al Qaeda franchises? "Terrorists"
generally? Or any individual under the sun with jihadist sympathies who is
potentially hostile to the United States, including U.S. citizens?
And what about people
linked to the al Qaeda franchise to advance local interests but who do not
harbor a desire to attack the United States -- are they also threats to U.S. national
security? Those groups may threaten U.S. allies, engaging national security
Once we get to pg. 74 of the "Liberty and
Security in a Changing World" report presented to President Obama this week, we
read that the conception of national security -- against which should be
weighed the legislative checks and balances that regulate the NSA's dragnet collection
-- goes beyond national security to include "foreign policy issues" too:
of international terrorism, the proliferation of weapons of mass destruction, cyber
espionage and warfare, the risk of mass atrocities, and the international
elements of organized crime and narcotics and human trafficking. They
include as well the challenges associated with winding down the war in
Afghanistan, profound and revolutionary change in the Middle East, and
successfully managing our critically important relationships with China and Russia."
So should the NSA's dragnet
surveillance be premised on a wide concept of national security that extends to
foreign policy generally, and the prevention of organized crime? Or should this
aspect of NSA surveillance be strictly limited to counterterrorism? And even if
limited to terrorism, what are the bounds of the terrorist enemy?
The key boundary is defined
by the war, or struggle, which thus identifies the enemy.
Let us expand on Secretary of State
Kerry's defense of the NSA program
in November, which does not speak to a clear distinction between war and peace:
The agency's present activities were "in many ways on autopilot," from a
trajectory "going back to World War II and to the very difficult years of the
Soviet Union and the Cold War and then of course 9/11, the attack on the United
States, and the rise of radical extremism in the world... I assure you that
innocent people are not being abused in this process, but there is an effort to
try to gather information... In some cases, I acknowledge to you, as has the president,
that some of these actions have reached too far."
The key association
is between the language of innocence and the over-extension of conceptual
boundaries that has allowed actions to "reach too far." Innocence indicates
that the real targets are guilty; they are criminals. Yet it is also implicit
in the secretary of state's remarks that terrorists are simultaneously enemies
to be defeated in war.
That goes not just
in Kerry's historical narrative, but in the formal U.S. legal comprehension of
a military confrontation within the paradigm of war: The United States holds
itself to be in a non-international armed conflict against al Qaeda, which
engages the right to self-defense under Article 51 of the U.N. Charter under
international law. Moreover, the 2001 Congressional Authorization for Use of
Military Force expressly meets the requirements of the U.S. War Powers
Resolution in domestic law.
What are the
practical consequences of conflating the two concepts?
First, unlike a
criminal, who is innocent until proven guilty, there is a presumption of
wartime discrimination against the enemy, most obviously in his status as a
legitimate target of lethal force. So there is no need to collect evidence
against an enemy in the traditional sense. When one does, the intelligence
effort expands exponentially.
Second, for the
individual to be an enemy is a temporary status dependent on the phenomenon of armed
conflict external to that individual. So when the armed conflict ends, the
individual loses his enemy status; if he is a prisoner of war he is released.
Conversely, criminal status is specific to the individual, and endures until
In practical terms,
conflation of the combatant and criminal concept underpins the expansion of the
struggle against terror: When the enemy becomes an identity that individuals
can subscribe to, both outside and within the state, and holds a status that is
then carried through life with the accompanying criminal designation, the
boundaries of the conflict are vastly expanded in time and space.
In summary, there seem
to me to be two fundamental questions that will calibrate the future extent of
the NSA's mass collection and storage of individual communications:
First, is this
specific aspect of the NSA's surveillance regime directed against terrorism, or
foreign policy issues more broadly? If it is the latter, I do not see an end to
mass individual surveillance.
Second, if terrorism
is the exclusive justification, then what are the boundaries of the US struggle
against terrorism? Until that is established, the ability of the U.S.
government and courts to establish a stable balance between the two freedoms is
seriously upset, as the state is effectively on a permanent war footing.
Take, for instance, this August 2013 opinion of the
Foreign Intelligence Surveillance Court (FISA), which approves an FBI request
for the NSA to collect bulk telephone data under Section 215 of the 2001
PATRIOT Act to protect against international
The central part of the test,
which the court applies to
issue orders compelling the production of telephone data, is a requirement for
"a statement of facts showing that there are reasonable grounds to believe that
the tangible things sought are relevant" to the investigation.
However, the FISA Court
makes clear that this test, used for foreign intelligence purposes, has a lower
standard of review than comparable legislation used for criminal investigation
purposes, for example the Stored Communication
The latter requires "specific and articulable facts" showing that the
information sought is "relevant and material" to the criminal investigation;
the former requires neither. The court expressly identifies that the 2001 PATRIOT Act
removed the "specific and articulable" provision from section 215 that was a
part of the previous pre-2001 incarnation of that provision, indicating that
Congress positively intended to lower the standard of review.
The logical end point of the
lack of specificity in America's struggle against terrorism reveals itself in
this deeply unsettling part of the opinion, which potentially includes U.S.
citizens: "Accordingly, now the government need not provide specific and
articulable facts, demonstrate any connection to a particular suspect, nor show
materiality when requesting business records under Section 215."
Instead, the regime
enforced by the FISA Court seeks to minimize the scope of NSA surveillance in
various ways, such as a requirement for reasonable and articulable suspicion in
the terms of the actual query to search the already collected bulk data (a
self-monitoring regime), and the possibility of judicial review of the court's
orders. This regime before 2009 was held by a Foreign Intelligence
and Security Court judge, Reggie Walton, to have "never functioned effectively."
By September 2009, reforms were made.
Did they work? The
widespread discomfort in the United States at the extent of NSA surveillance,
as suggested in the open letter to the Obama administration
sent last week by U.S. tech companies, does not suggest that this approach has
encouraged public confidence; secret interpretation of public law rarely does.
What about the Fourth Amendment, brought before Congress
by James Madison as part of the Bill of Rights of 1789, and partly informed by
resistance to the widespread and indiscriminate search warrants the British
used against their American colonists? The Fourth Amendment protects U.S.
citizens from unreasonable searches and seizures, and has at its heart the
concept of specificity: "No warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized."
The FISA Court, however,
holds that the Fourth Amendment was not engaged. First, because there is no
legitimate expectation of privacy in telephone metadata once an individual has
made a call, given the phone provider will already have the information. Second, because the collection in
question was bulk, and because no one individual has a personal interest.
Doesn't this mean then,
that when an enemy can be anywhere, the state needs to look everywhere, and yet
supposedly infringes privacy nowhere?
This would depend on which
strand of the argument the FISA Court places more weight on, which is hard to
discern from the opinion. The broader point, however, is that these are potentially
the kind of logical dead-ends that one reaches when the struggle against
terrorism is so ill defined; this is not a logic upon which a stable balance
between external and internal freedoms can rest. Indeed, the Fourth Amendment
issue is a major point of difference in Judge Richard Leon's ruling.
It would be naïve to
propose that the disaggregation of threats, the specification of enemies, and
demarcation of combatant and criminal identity is an easy task. The real issue is
how states deal with terrorist networks that configure themselves as franchise
movements, to which individuals can subscribe by committing a criminal act
which simultaneously triggers enemy status. More broadly, what about the
individual who simply declares themselves an admirer, even vicariously through "liking"
a pro-al Qaeda post on Facebook?
question is really about how far U.S. citizens expect the state to protect them
individually from terrorism. Some aspects of the terrorist threat are matters
of national security, even arguably an existential threat to the state: Consider
the weapon of mass destruction in the city scenario. But most, clearly, are not.
Such distinctions between security on the one hand and genuinely national security
on the other correlate to how much individual -- as opposed to collective -- risk the
political community is prepared to tolerate. Ultimately, the boundary between
individual and collective security can only be established by public debate and
the democratic process, not secret courts.
In the final
reckoning, this is a strategic as much as a civil rights issue. The
contamination of conceptual boundaries between enemy and criminal ultimately
subverts the utility of war as a political instrument. War, traditionally seen
as the ultimate instrument of political decision, has a problem when it never
ends: Military activity increasingly comes to merge with political activity,
and politics does not end.
President Obama voiced an
aspiration to move to a more bounded concept of the struggle against terrorism
in May 2013, but the NSA revelations have exposed a substantial gap between
words and reality; the inconsistencies in his speech are laid bare.
At his press conference
last Friday, Obama stated an intention to deal with the issue by discussing how
to implement his blue ribbon panel's report. But that approach will not succeed
in striking an adequate balance between national security and civil rights, as the
report does not deal with the root issue of how to redefine the war on terror.
As Madison wrote, no nation can preserve its freedom in the midst of continual
The U.S. national security
strategy will be published in early 2014, the first since 2010. This is the president's
opportunity to follow through on the ostensibly compartmentalizing aspirations
of his May speech. Let's see what happens.
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