Today in a final post in our ongoing NSA debate between authors Gabriella Coleman and Rahul Sagar, Professor Coleman, author of Coding Freedom, responds to Professor Sagar’s recent post, offering a historical perspective on intelligence agencies and raising the potential for grave abuse in an era of increased technological capabilities. Read the wrap up post in this fascinating series here:
Rahul Sagar’s thoughtful response has prompted me to think through a few troubling questions which have been plaguing me since Snowden’s bombshell revelations. It is without question that intelligence agencies require secrecy to effectively work. I agree that this issue is not new. But if history is any guide, it also shows that secrecy, while necessary, is also a breeding ground for abuse. In a prior era, a dramatic leak by the Citizens Commission to Investigate the FBI helped put an end to a 40 year reign of outrageous abuses, such as COINTELPRO, at the helm of J. Edgar Hoover who ruled the FBI with an secretive iron fist.
But this surveillance apparatus strikes as technologically and thus historically distinctive. It can be gravely abused with or without a Hoover. Never in our history have we had in place a surveillance infrastructure as extensive and powerful as we do now, nor administrations who have refused so systematically to declassify information. (One does wonder what Nixon could have done with the surveillance methods that the government has at its disposal today). With enough computer power, it is frighteningly easy for the government to gather data. This ease will likely push them to seek questionable or ex post de facto justifications for their actions. This was put rather cogently and succinctly by civil liberties lawyer Jennifer Granick when “Of course, we see mission creep – once you build the mousetrap of surveillance infrastructure, they will come for the data.” It is not only that they have this power, but as sociologists and others, have noted, secrecy is alluring and really hard to give up/ This state of mind was put best by physicist Edward Teller who wrote, “secrecy, once accepted, becomes an addiction.”
There might be a very good reason to have the surveillance methods that the NSA has now, but until that reason is disclosed, there is no reason for them to have such awesome technical (and questionable) legal powers currently at their disposal. The problem is we have these programs and our government could use them as a tool of oppression (in fact the mere fact of their existence serves to stifle dissent). Even if abuses are not so grave today, what is so troubling is how these programs enable any future person who might gain control of them to utilize these tools for serious oppression.
We as a society have to ask whether this is a gamble we are willing to take. Since the stakes for the future are so high, the decision about the scope and depth of eavesdropping cannot and should not be an undertaking that is decided by the President, the FISA court, or even all the three branches of government acting in agreement. Only we as a people, who hold the truths described in the constitution as self-evident, are allowed, by that very constitution, to make changes to these rights. “to secure these rights, Governments are instituted among Men [and Women et al.], deriving their just powers from the consent of the governed, — 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” At some point, the actions of the government go too far, and it is up to us to sound the alarm. The Pentagon Papers, the COINTELPRO leaks, the Tet Offensive, these are many instances when citizens have not trusted our elected officials and with good reason.
It is our responsibility to hold our elected officials accountable, although we can only effectively do so with the aid of a free press. Journalists help keep whistle-blowers accountable. Snowden worked with journalists, from independent film maker Laura Poitras to Glenn Greenwald at the Guardian to Barton Gellman of the Washington Post. The fact that respected news organizations accepted the leaks, filtered the information, and wrote extensive and thoughtful stories demonstrates the validity and responsibility of Snowden’s actions. If his leaks posed such a grave threat to the state of security, I trust these media establishments would not gone public with them.
Finally, I would like to clarify Snowden’s statements on Nuremberg. He is not equating the NSA with Nazi Germany, he just simply referencing a principle. He is also not saying that this principle exonerates him in any US court, but simply that it justifies his actions on a moral level. Snowden is saying that there are times where it is not only moral to break the law, but that it is immoral and wrong to not break the law. Further, it might be interesting engage in a thought experiment about how Snowden’s actions also might relate to the Nuremberg Principles. For the purposes of this experiment, we would submit some undisputed facts about The United States. The United States continues to torture and cause substantial suffering to 44 people who are still held against their will in Guantanamo Bay, Cuba, via forced nasal intubation twice daily. In the past, they were tortured by electrocuting their genitals, and simulated drowning through waterboarding. The US has forcibly rendered people to other countries for purposes of torture, and deprive them of their liberty without charge or due process, calling them “detainees”. If we look how Nuremberg Principles defines a “crime against humanity” the United States has committed over half of the abuses on that list. The programs that Snowden has revealed likely were involved in the capture and detainment of many of these people.
In the end I, like everyone else, wants to live in a state of security. This means not only thwarting terrorism—though it invariably includes it—but means having the security to engage in dissent, thus the security to call out the grave human rights abuses—such as those at Guantanamo Bay—which our elected officials have allowed to transpire and to raise red flags about programs, such as Prism, which might lead to grave abuse in the future.