Ferguson And The Tale Of Two Wars

A nation at war–an indefinite, borderless one, conducted against a faceless enemy, with little legal or moral restraint, with an endless wallet to be dipped into–will find, sooner or later, that the same inchoateness, the same vagueness, the same productive lack of definition of that conflict, which permitted its waging to be conducted secretly without trammel, will also facilitate the seeping back of that war to within its own borders. Wars, if conducted long enough, come home. To stay. To search too long for enemies elsewhere is to make possible and easier their location closer to home.

There are two wars currently underway, conducted by the US. There is the war on terror, kicked off in 2001, with a death toll in the hundreds of thousands, a budget in the trillions, and a progress report card that would qualify for an F–thanks to the political, legal, and moral disasters it has left in its wake. Local states made unstable; hostile regimes made stronger; religious and sectarian strife reinvigorated; torture and killings without due process; and of course, curtailment of civil rights at home. And then, there is the war on drugs. Its kickoff date is a little uncertain but there is no mistaking its cost and failures: rampant, social-service destroying budgets, a racialized conflict written into legal stone, a grossly bloated drug enforcement apparatus, interference in the domestic policies of sovereign states, the incarceration and criminalization of thousands of young men, the list goes on.

The blowback from these never-ending wars is clearly visible in Ferguson, where a perfect storm rages in exquisite miniature: a hostile, militarized, aggressive police stalks the streets of a town with a significant African-American population, their fingers resting lightly on the trigger, convinced they are in hostile territory; a  confrontation with the locals–now not understood as members of a ‘community’ but as potential deadly criminals–quickly turns violent and murderous. Police all over the nation know the feeling; they are used to patrolling behind the lines on search and destroy missions. They’ve seen plenty of footage of kick-down-the-doors raids, of young men lying on the ground, waiting to be searched; they know what to do when someone talks back. A punch to the throat, a kick in the groin, and sometimes, when they don’t stop coming at you, a bullet to the head. Nothing is as important as making sure dimebags stay off the streets.

Then, when protests occur, they are met with disproportionate amounts of force and regulation and policing, with all the tools whose use has been perfected in the years of control that have followed the declarations of these wars. The language is that of peace at any costs, no matter the damage done to the values supposedly being protected. The peace of the graveyard–an orderly place–will do just fine.

All too often, it is imagined, because of the relentless hagiography of the Second World War, that war is an ennobling thing. But it isn’t. Those who conduct it lose themselves in the process; the fighting doesn’t remain directed outward.

If you stare long too into the abyss of war, it stares back at you.

Nice Try NSA-Defenders (Not!)

There are two very bad arguments and one rather illiterate confusion making the rounds in the wake of the NSA surveillance scandal. I’ll consider each of them briefly.

First, we have the ‘it was legal’ argument: the surveillance was sanctioned by the Patriot Act, approved by FISA courts, and Congress was in the loop etc. Now, the elementary distinction between legality and morality, between what the law permits and proscribes and what we might consider the right thing to do is just that: elementary. The undergraduates in my Philosophy of Law classes don’t need to be introduced to the distinction between natural law and positive law or to the assigned readings which inquire into our supposed obligations to the law to understand and know this difference. Their lived lives have given them ample proof of this gap as have the most basic history lessons. (Slavery is everyone’s favorite example but many more can be found rather easily.) Indeed, why would we ever have impassioned debates about ‘bad laws’ that need to be revised if the ‘it’s legal’ argument was such a clincher?

Furthermore, the folks complaining about the NSA surveillance are not just complaining about the legality of this eavesdropping and surveillance: they are suggesting the application of some laws is an onerous imposition on them, one that grants the government too much power. They are suggesting this is a moment when the laws of the land require revisitation. This is especially true of the obnoxious Patriot Act. (In another context, consider the draconian Digital Millenium Copyright Act.) Or consider that FISA courts routinely approve all requests made to them, and that the NSA has seven days in which to mine data before it applies for a warrant. All of this is legal. Is it problematic? We could talk about it so long as we aren’t shut up by the ‘its legal’ argument.

Second, we have the vampire ‘if you have nothing to hide, then what do you have to worry about’ argument – it simply refuses to die. No matter how many times it is explained that privacy is not about the hiding of secrets but about the creation of a space within which a certain kind of human flourishing can take place, this hoary nonsequitur is dragged out and flogged for all it is worth. But let me try real quick: we need privacy because without it, very basic forms of life would not be possible. An important example of this is the personal relationship. For these to be built, maintained and enriched, privacy is required. We do not generate and sustain intimacy–emotional and sexual–under observation and analysis; we do so far away from the madding crowd. I am not doing anything illegal or secretive in the maintenance of my personal relationships but I would still like their details to be private. Hopefully, that’s clear. (Who am I kidding?)

Lastly, there is a dangerous conflation between paper records and electronic records. For instance, David Simon, the latest to join the ‘relax, its legal and being done to protect us’ brigade, runs an analogy with the Baltimore wiretaps carried out by the local police and concludes:

Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual.

Except that it doesn’t. Those ‘sheets and sheets’ do not correspond to the billions of digital records obtained from Verizon, which can be stored indefinitely and subjected to data analysis in a way that the hard-copy data cannot.

These arguments will be made again and again in this context; might as well get some brief refutations out there.

Glenn Greenwald is Not the Story; The Surveillance Is

The New York Times has an article on Glenn Greenwald, who has broken two stories on the NSA surveillance programs that now occupy most thinking people’s attention, which is titled thus: ‘Activist Blogger Is At The Center Of A Debate‘ on its front page. (The article’s title reads ‘ Blogger, With Focus on Surveillance, Is at Center of a Debate’). That headline, and the content of the story, tells us a great deal about what is wrong with modern journalism  and why civil liberties outrages aren’t so outrageous any more.

Greenwald is most emphatically not at the ‘center’ of any debate. He is not the story; the surveillance program is. But surely, some background on the reporter who broke the story would let readers evaluate his credibility? I’m afraid this claim does not withstand closer scrutiny even though it smacks of a pleasing epistemic rectitude: ‘all we are doing is investigating the source of this story’. To focus on him  is a a straightforward misdirection of journalistic effort. The New York Times should be concentrating on uncovering more details about the surveillance programs in the Greenwald articles, but not about Greenwald himself.

(Incidentally, just for good measure, the New York Times article includes a couple of ad-hominem slams against Greenwald:

Gabriel Schoenfeld, a national security expert and senior fellow at the Hudson Institute who is often on the opposite ends of issues from Mr. Greenwald, called him, “a highly professional apologist for any kind of anti-Americanism no matter how extreme.”

Mr. Sullivan wrote in an e-mail: “I think he has little grip on what it actually means to govern a country or run a war. He’s a purist in a way that, in my view, constrains the sophistication of his work.”

There is praise for Greenwald too, but all of this is really besides the point.)

The correct thing for New York Times journalists to do at this point is to get to work on verifying the authenticity of the documents that Greenwald’s source has made public and to explain to their readers:  what their legal and political implications are; how these programs fit into the context of the surveillance that the previous administration kicked off; what the relevant sections of the Patriot Act are; whether the defenses made by administration officials stand up to scrutiny or not; and so on. The New York Times has done some of these things, but my point is that at this moment, those  ought to be its exclusive focus. There is a chance here for a serious journalist to expose the workings of a provably out-of-control government; anything else is a distraction at this stage.

This kind of missing-the-point is not restricted to the focus on Greenwald. Consider for instance, the stories on the Bradley Manning trial. As Matt Taibbi points out, most media outlets are obsessed by his personal background and are rather spectacularly missing the forest for the trees:

The CNN headline read as follows: “Hero or Traitor? Bradley Manning’s Trial to Start Monday.” NBC went with “Contrasting Portraits of Bradley Manning as Court-Martial Opens.”

Unsurprisingly, the citizenry marches on, its attention diverted.

The Spying Will Continue Until Morale Improves

The New York Times, picking up on a Guardian story by Glenn Greenwald, reports that:

The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs aVerizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

This policy is a straightforward continuance of the Bush administration’s massive surveillance effort, similarly directed by the NSA in co-operation with telecommunications companies. The scope of the order indicates the data collection is indiscriminate: it is not directed, targeted or narrowly focused. (The court order does limit the data collection by time.) Rather, it is a broad sweep, a trawl to net the NSA’s desired catch. This is not surveillance to confirm a hypothesis; this is surveillance to try to frame one. This is not surveillance as an aid to detective work; this is surveillance as an integral component of that work. As Greenwald notes:

FISA court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

Especially interesting, I think, is the reaction to the story. By that I do not mean the reactions of politicians, journalists, and privacy advocates. Rather, if one is allowed to believe that comments on the New York Times story are at all reflective of the ‘word on the street’, then a couple of apologetic samples are depressingly interesting.

For instance, ‘pjd’ from Westford writes:

I’m surprised that no one has noted the dates in the order. The order was signed on 4/25/2013 which is ten days after the Boston Marathon bombing.

This response is emblematic of the ‘it’s justified because of the terrorists.’ Never mind that nothing about the Boston bombers seems to indicate any kind of widespread conspiracy that would justify such a massive surveillance effort.

And ‘Kurt’ from NY writes:

Ordinarily, this kind of data collection could be interpreted as overly broad and a threat to civil liberties….But, again, given just how disturbing it seems on its face, if a judge is willing to make such an order and Congress is aware of it, it would seem to suggest that there is legitimate need in response to specific threat. Which would also say that, given the security classification it has been given, for this matter to be public knowledge as it now is is possibly injurious to national security.

Here we have the standard ‘the government must have a reason even if they aren’t telling us, and that’s fine by me.’ The trust displayed here in a judicial and executive branch that have done nothing to justify it is touching.

And this statement by the Obama Administration is equally risible:

The information acquired does not include the content of any communications or the name of any subscriber.  It relates exclusively to metadata, such as a telephone number or the length of a call.

Why is this not even remotely comforting?

Glenn Greenwald on Civil Liberties and Their Willing Surrender

Today, at Brooklyn College, Glenn Greenwald delivered the 39th Samuel J. Konefsky Memorial Lecture. I was lucky enough to be in attendance and thoroughly enjoyed watching this top-notch muckraker and gadfly in action. I have often seen Greenwald speak on video but this was the first live presentation I have witnessed. It was everything it was promised to be: Greenwald was passionate, precise and polemical. The title of his talk was ‘Civil Liberties and Endless War in the Age of Obama’ and so, appropriately, Greenwald began by offering a definition of ‘civil liberties‘: a set of absolute, unconditional constraints on governmental and state power, ones defined and defended by the people. These should be so stark and clear that no abridgments should be possible or tolerated; those who suggest or support these show themselves to not possess a true understanding of the concept.

With this uncompromising bottom line clearly articulated, Greenwald then presented a tripartite analysis of why, despite the presence of the US Constitution and its Bill of Rights, the state of civil liberties in the US today appears to be quite as problematic as it is and why the US populace has so easily acquiesced to this denial of their constitutional privileges.

First, the US has been since 2001, in a state of ‘perpetual war’, against poorly defined enemies, with no geographic or temporal limitation. This war ensures the endless invocation of natural security as a reason for the attenuation and abuse of civil liberties, whether it be surveillance, indefinite detention without trial, or the assassination of American citizens without trial. The lessons of history have been learned well by the administrations that have held power in the US over the past dozen years: war provides refuge for roguish government behavior of all kinds, and nothing quite prepares a populace for the surrender of civil liberties like the threat of an enemy, one whose threat can only be repelled by increasing the powers a state commands.

Second, the surrender of civil liberties is made more palatable when their abuse by the state appears to be directed against a demonized minority. The gullible majority, convinced that these systematic corruptions of the Bill of Rights remain confined to just this hapless lot, and convinced that their liberties are being protected as a consequence, gladly sign on and form cheering squads, unaware that soon the baleful eye of the powers-that-be will be turned upon them. In the American context  Muslim-Americans have borne the brunt of the the post-911 ravishing of the Bill of Rights. There is little sympathy for them in most parts of the American polity, but the damage done to what is considered ‘normal’ is real enough. Our civil liberties were, and are, next.

Third, yesterday’s ‘extreme’ or ‘radical’ is today’s normal. When the Patriot Act was first passed, it provoked vigorous debate and contestation even in a country still traumatized by 9/11. Its renewals have provoked little debate and attention. We live in a post-Patriot Act US. Its draconian provisions are now the new normal. In this context, I’d like to note once again, the seemingly-useless but very-effective-in-getting-citizens-used-to-the-idea-of-random-searches subway searches in New York City.

Greenwald spoke on a great deal more, including, most importantly, how concerted, determined, political activism by the citizenry still remains, the only and best way to safeguard and preserve the Bill of Rights.

My brief notes above are merely a sampler; catch him at a speaking venue near you if you can.