I have regularly argued (or sometimes simply assumed) that it is reasonable to accept some degree of state intrusion into the private dealings of its citizens, in the interests of national or individual security (see, for instance, ‘Spying and the public interest’, November 2011). Of course, I also accept that it is permissible to spy on individuals who may not be citizens but who may represent a threat to those who are. Indeed, quite recently, I have criticised US security authorities for failing to be sufficiently proactive in the matter of the Boston bombers (‘Loosers’, April, this year).
In my judgement, it is also reasonable to accept that national intelligence agencies should not be required to disclose, to their respective populations, their methods and sources. This, for the very evident reason, that to do this would carry the inevitable risk of reducing the effectiveness of such methods and of prejudicing the sources. There are plenty of examples of exactly this happening where government spokespersons, or enthusiastic supporters, or an enthusiastic media, wishing to get ahead of the crowd, have revealed a technology application, or an adversary vulnerability, only to find that the ‘application’, and/or the ‘vulnerability’ have disappeared. The essential ‘mosaic’ nature of intelligence and counter-intelligence means that it is difficult to know when the next item of information will contribute to the completion of a complex picture for either side. From the point of view of the state, it is thus better to say less than more.
Of course, this is the nub of the problem. In a democratic society, sensitive to the inherent right of privacy for citizens, there is a problem in justifying any degree of surveillance of ordinary citizens. This is particularly so, where (as in the United States) such privacy is constitutionally protected. The problem is exacerbated where there are reasons for limiting the scope of what may be said (as indicated in the preceding paragraph). The American solution (the bi-party congressional committee) has seemed to work well in dealing with this. Both the Senate and House Intelligence committees are capable of hearing from the practitioners in a confidential setting and of reviewing policy settings in a way that reflects public anxieties, as well as taking into account the difficulties outlined in the previous paragraph (i.e. revealing sensitive information). That seems to depend crucially on the cooperation of the parties (Democrats and Republicans) and it is notable that, even in the present somewhat fraught circumstances, this convention is being maintained.
As far as the American government is concerned (and, of course, it is the government that is responsible for what is being done), the issues are different. President Obama has hinted, in general terms, about the sort of ‘trade-offs’ that are required but he cannot have a debate with the American people for reasons already outlined. He can, perhaps, refer to the protections that are built in to the various intelligence-gathering activities, such as the so-called FISA committee (Foreign Intelligence Surveillance Agency) but he cannot really illustrate its work, without giving out sensitive information. For him, it is ultimately a matter of trust. The American people might accept that governmental ‘data-mining’ of telephone calls and internet traffic is not a threat to their privacy because it is ‘contentless’, and to go beyond this requires (in the old legal phrase) ‘probable cause’.
However, for this they would need to be confident that the government, or individuals within it, would not go beyond what is permitted, and this is precisely what seems to have occurred over the last couple of years, in the internal revenue service (IRS) and in the office of the Attorney General. In the former, it now seems clear that some American taxpayers were discriminated against on the basis of their political affiliations, or interests, and that confidential information supplied by those tax-payers was supplied to persons in President Obama’s political support organisations. As recent polls have shown, President Obama’s level of public trust has declined is now below that of President Bush, for goodness sake!
This is what would have emboldened Edward Snowden to ‘come out’ with his revelations about ‘Verizon’ (telephone traffic) and the ‘Prism’ internet surveillance system. Plus (I rather suspect) particular personal sympathies which have apparently impelled him to seek out Julian Assange (still hiding in the Uruguayan Embassy in London). The connection is also being made with Private Bradley Manning, now on trial for having revealed a massive cache of US intelligence material, through Assange, to the world. And that, I think, is the right context for Snowden; not as a noble ‘whistle-blower’ but as a traitor. He could have quite properly revealed the claimed government wrong-doing to an appropriate committee, just as some public servants connected to the Benghazi and IRS business have done.
Notwithstanding the doubts arising from present discontent in the US concerning the behaviour of certain persons in the IRS, in Justice, and more recently, the Department of State, together with the occasional failures of the intelligence apparatus (as in Boston), it is still reasonable for Americans to accept a surveillance system that aims to protect them from continuing threats, and without which they would be at greater risk. Something similar applies to us, although we may wonder how reliable a local supervisory regime that included our own Russell Norman might be. I note that he has suggested that we should offer Snowden political asylum here in New Zealand. Now, who thinks that would be a good idea?