Legitimacy strikes back

“A democratic constitutional state that uses Stasi methods sacrifices all credibility as a moral authority,” [European Member of Parliament Markus] Ferber told the German daily Die Welt on Sunday [June 30, 2013]. “It has destroyed trust.”[1]

“It is the height of naivete to think that once collected this information won’t be used,” [Even Schmidt, a former Stasi department head] said. “This is the nature of secret government organizations. The only way to protect the people’s privacy is not to allow the government to collect their information in the first place.” . . .

“Everyone knows that gathering so much information is bullshit,” said Reinhard Weisshuhn, a political activist and foreign policy adviser. “It’s a total breach of trust by the government. This is how a society destroys itself.” . . .

“The lesson,” [Stefan Wolle, curator at the East German Museum] added, “is that when a wide net is cast, almost all of what is caught is worthless. This was the case with the Stasi. This will certainly be the case with the NSA.”[2]

The legitimacy of a government is the notion that a person or a group of persons is “legitimately” in control of a territory, and that other people within that territory should acquiesce to their rule. It is a preferred substitute for rulers sending their police or armies everywhere to physically coerce people to comply. The argument has to be that the people at large gain from the privileges of the few.[3]

One of the ways that an elite claims legitimacy for itself and its edicts is in agreeing to be bound by them itself. This is what it means to be a “nation of laws” or a nation “under the rule of law.” It is what it means to have a constitution, which not only specifies rights held by the people, but how the government is to operate in the public interest.

If a ruling class is too intrusive or too arrogant, people come to resent it and, over time, this undermines the balance between the benefit of the many and the privileges of the few, and hence undermines the agreement of the larger population to acquiesce to the few. When governments spy on their own people, on whatever pretext, they are effectively stating that they do not trust their populations to acquiesce, in other words, that the agreement between the population and its rulers is in doubt. This is why Germans, especially those with experience of the East German regime, recognized the problem of legitimacy almost immediately, as soon as the documents leaked by Edward Snowden revelations began to come to light. I subsequently argued on other grounds that the U.S. government no longer governs through legitimacy, but rather through fear.[4]

These observations have not yet gained enough traction within the U.S. to compel change. Many continue to grant the government a pass even as the extent of NSA snooping appears broader and broader, even as NSA-defenders’ claims as to the limitations on the scope of the spying are successively exposed as deceptive,[5] even as it is increasingly clear “that success for the agency has largely come to be measured in terms of adding yet more ‘hay’ to an already mountainous ‘haystack’ to find ‘needles’ in.”[6] It has gotten so ridiculous that they are even tracking video game players, again without any demonstration that so-called “terrorists” are using the medium, and again with nothing apparent to show for it.[7] Comparisons with the Stasi can no longer be dismissed as hyperbole, as it is clear that the NSA is also, in effect, tracking everyone with a cell phone, certainly outside the U.S., and “incidentally,” an unknown number within the country, recording not only who they call when, and for how long, but continuously, their physical locations.[8]

In an angry conversation with [U.S. President Barack] Obama in October after the phone monitoring was revealed, [German Chancellor Angela] Merkel said that the N.S.A.’s activities reminded her of growing up as the daughter of a Protestant minister in East Germany. “She told him, ‘This is like the Stasi,’ ” said one person who had discussed the conversation with the chancellor.[9]

That brings us to a very odd place. There are those, particularly in the White House, and on congressional intelligence committees, who refuse to countenance the notion that the NSA programs should be abandoned or even significantly curtailed. They may convene “independent” committees to evaluate the balance between privacy and security, but the political decisions have already been made. Senator Diane Feinstein’s bill, the one that would only mildly increase accountability,[10] remains the most likely reform—if one can call it that—to pass into law.

The center-left newspaper Sueddeutsche Zeitung took Obama to task over the surveillance issue. “Governments do not have the right to conceal broad lines of policy,” the newspaper wrote. “President Obama is operating according to an odd maxim: ‘I am doing a lot of the same things that George W. Bush did, but you can trust me because I am the one doing it.’ Not even Obama is deserving of that much trust.”[11]

Yet, as more are beginning to notice, these programs have yet to be justified in specific revelations of prevented “terrorist” attacks. U.S. District Court Judge Richard Leon has handed down a preliminary ruling that the NSA programs are likely in violation of the Fourth Amendment to the U.S. Constitution.[12]

We hear a lot of patronizing talk from President Obama and other officials about how healthy it is that we’re finally having a debate about surveillance and privacy, about security and freedom. The subtext, however, is clear: Get over it.

Interviewed Sunday on “Meet the Press,” former NSA director Michael Hayden offered a stunningly dismissive view of the Fourth Amendment: “We’re protected against unreasonable search and seizure, all right? It doesn’t say that all searches must be based upon reasonable suspicion. So now, unreasonable search and seizure depends upon the totality of circumstances in which you find yourself.”

My circumstances, in their totality, are these: sitting on the couch, minding my own business. What am I doing to deserve an electronic stop-and-frisk?[13]

At the same time, it emerges that the NSA is subverting web cookies that marketers and high technology companies—at least Google’s cookies, but there’s little reason to believe that the NSA wouldn’t do it with anybody else’s cookies—plant on nearly everyone’s browsers,[14] meaning that pretty much everybody’s web browsing habits are exposed. On top of all the other breaches of social media, email, and cloud accounts, on top of all the other breaches of communication services supplied by a few high technology companies,[15] it is increasingly apparent that the Snowden disclosures threaten industry interests, underscoring that elites are divided amongst themselves over the wisdom of these programs.[16] To the extent that money is indeed where the rubber hits the road in U.S. politics, a contest has arisen between, on one side, those elites who continue to rely on the trust of their users, that is, their own legitimacy, and on the other side, those who are vested in a National Security State and who cannot or will not justify these programs, and therefore effectively claim that their decisions on constitutional issues are beyond challenge, but are determined to continue these programs anyway.

So it seems we have come to the all-important question. To what degree, going forward, will we continue, as another district court judge has observed of the lack of prosecutions for fraud in the financial industry,[17] to be a country with two tiers of justice: one in which elites are largely held immune from law and constitutional obligations, and another tier for everyone else, but especially the poor and people of color, who are not only not immune to the law,[18] but who are subject to an arbitrary and ever broader definition of terrorism,[19] and whose privacy is invaded regardless of suspicion. This is a question which strikes at the heart of the legitimacy of the U.S. government, and which cannot plausibly be evaded for much longer.

  1. [1]Claus Hecking and Stefan Schultz, “Spying ‘Out of Control’: EU Official Questions Trade Negotiations,” Spiegel, June 30, 2013, http://www.spiegel.de/international/europe/eu-officials-furious-at-nsa-spying-in-brussels-and-germany-a-908614.html
  2. [2]Matthew Schofield, “Memories of Stasi color Germans’ view of U.S. surveillance programs,” McClatchy, July 10, 2013, http://www.mcclatchydc.com/2013/06/26/195045/memories-of-stasi-color-germans.html
  3. [3]Gerhard Lenski, Power and Privilege: A Theory of Social Stratification (New York: McGraw-Hill, 1966).
  4. [4]David Benfell, “Big Brother wants you to be afraid,” Not Housebroken, August 19, 2013, https://disunitedstates.org/?p=5806
  5. [5]David Benfell, “N.S.A. scandal timeline,” December 4, 2013, https://parts-unknown.org/wp/2013/11/07/peeping-obama-prospects-for-a-movement-to-restore-the-right-of-privacy/; Democracy Now! “As Judge Rules NSA Surveillance “Almost Orwellian,” Obama Prepares to Leave Spying Program Intact,” December 17, 2013, http://www.democracynow.org/2013/12/17/as_judge_rules_nsa_surveillance_almost
  6. [6]Benfell, “N.S.A. scandal timeline”
  7. [7]James Ball, “Spy agencies in covert push to infiltrate virtual world of online gaming,” Guardian, December 9, 2013,http://www.theguardian.com/world/2013/dec/09/nsa-spies-online-games-world-warcraft-second-life; Justin Elliott and Mark Mazzetti, “World of Spycraft: NSA and CIA Spied in Online Games,” ProPublica, December 9, 2013,http://www.propublica.org/article/world-of-spycraft-intelligence-agencies-spied-in-online-games; Mark Mazzetti and Justin Elliot, “Spies’ Dragnet Reaches a Playing Field of Elves and Trolls,” New York Times, December 9, 2013,http://www.nytimes.com/2013/12/10/world/spies-dragnet-reaches-a-playing-field-of-elves-and-trolls.html;
  8. [8]Barton Gellman and Ashkan Soltani, “NSA tracking cellphone locations worldwide, Snowden documents show,” Washington Post, December 4, 2013, http://www.washingtonpost.com/world/national-security/nsa-tracking-cellphone-locations-worldwide-snowden-documents-show/2013/12/04/5492873a-5cf2-11e3-bc56-c6ca94801fac_story.html; April Glaser and Kurt Opsahl, “Meet CO-TRAVELER: The NSA’s Cell Phone Location Tracking Program,” Electronic Frontier Foundation, December 5, 2013, https://www.eff.org/deeplinks/2013/12/meet-co-traveler-nsas-cell-phone-location-tracking-program; Lewis Smith, “NSA collects data revealing location of five billion mobile phones every day,” Independent, December 5, 2013,http://www.independent.co.uk/news/world/americas/nsa-collects-data-revealing-location-of-five-billion-mobile-phones-every-day-8983957.html
  9. [9]David E. Sanger and Alison Smale, “U.S.-Germany Intelligence Partnership Falters Over Spying,” New York Times, December 16, 2013, http://www.nytimes.com/2013/12/17/world/europe/us-germany-intelligence-partnership-falters-over-spying.html
  10. [10]Spencer Ackerman, “NSA chief on spying programs: ‘There is no other way to connect the dots’,” Guardian, December 11, 2013,http://www.theguardian.com/world/2013/dec/11/nsa-chiefs-keith-alexander-senate-surveillance; Agence France-Presse and Reuters, “US spying ‘reached too far’, Kerry concedes, as new surveillance laws approved,” South China Morning Post, November 1, 2013, http://www.scmp.com/news/world/article/1345199/us-spying-reached-too-far-kerry-concedes-new-surveillance-laws-approved; Democracy Now! “As Judge Rules NSA Surveillance “Almost Orwellian,” Obama Prepares to Leave Spying Program Intact,” December 17, 2013, http://www.democracynow.org/2013/12/17/as_judge_rules_nsa_surveillance_almost; Deutschewelle, “Panel recommends NSA changes after ‘cataclysmic’ Snowden affair,” December 14, 2013, http://www.dw.de/panel-recommends-nsa-changes-after-cataclysmic-snowden-affair/a-17296556; John Hudson and Shane Harris, “Dianne Feinstein Is Still a Friend of the NSA After All,” Foreign Policy, October 31, 2013, http://thecable.foreignpolicy.com/posts/2013/10/31/diane_feinstein_is_still_a_friend_of_the_nsa_after_all; Mike Masnick, “Mike Rogers: You Can’t Have Your Privacy Violated If You Don’t Know About It,” TechDirt, October 30, 2013, http://www.techdirt.com/articles/20131029/18020225059/mike-rogers-you-cant-have-your-privacy-violated-if-you-dont-know-about-it.shtml; Ellen Nakashima, “White House to preserve controversial policy on NSA, Cyber Command leadership,” Washington Post, December 13, 2013,http://www.washingtonpost.com/world/national-security/white-house-to-preserve-controversial-policy-on-nsa-cyber-command-leadership/2013/12/13/4bb56a48-6403-11e3-a373-0f9f2d1c2b61_story.html; Will Oremus, “House Intelligence Chair Mike Rogers: “You can’t have your privacy violated” if you don’t find out about it,” Slate, October 31, 2013, http://www.slate.com/blogs/future_tense/2013/10/31/house_intelligence_chair_mike_rogers_you_can_t_have_your_privacy_violated.html; Charlie Savage, “Senators Push to Preserve N.S.A. Phone Surveillance,” New York Times, September 26, 2013, http://www.nytimes.com/2013/09/27/us/politics/senators-push-to-preserve-nsa-phone-surveillance.html
  11. [11]Matthew Schofield, “Memories of Stasi color Germans’ view of U.S. surveillance programs,” McClatchy, July 10, 2013, http://www.mcclatchydc.com/2013/06/26/195045/memories-of-stasi-color-germans.html
  12. [12]David Benfell, “N.S.A. scandal timeline,” December 4, 2013, https://parts-unknown.org/wp/2013/11/07/peeping-obama-prospects-for-a-movement-to-restore-the-right-of-privacy/; Josh Gerstein, “Judge: NSA phone program likely unconstitutional,” Politico, December 16, 2013, http://www.politico.com/story/2013/12/national-security-agency-phones-judge-101203.html; Charlie Savage, “Federal Judge Rules Against N.S.A. Phone Data Program,” New York Times, December 16, 2013, http://www.nytimes.com/2013/12/17/us/politics/federal-judge-rules-against-nsa-phone-data-program.html; Jonathan Turley, “Federal Court Declares NSA Program Unconstitutional,” December 16, 2013, http://jonathanturley.org/2013/12/16/73561/
  13. [13]Eugene Robinson, “Demand your privacy,” Washington Post, December 16, 2013, http://www.washingtonpost.com/opinions/eugene-robinson-demand-the-return-of-your-privacy-from-the-nsa/2013/12/16/48f450f4-6678-11e3-a0b9-249bbb34602c_story.html
  14. [14]Ashkan Soltani, Andrea Peterson, and Barton Gellman, “NSA uses Google cookies to pinpoint targets for hacking,” Washington Post, December 10, 2013, http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/10/nsa-uses-google-cookies-to-pinpoint-targets-for-hacking/
  15. [15]David Benfell, “N.S.A. scandal timeline,” December 4, 2013, https://parts-unknown.org/wp/2013/11/07/peeping-obama-prospects-for-a-movement-to-restore-the-right-of-privacy/
  16. [16]Brian X. Chen, “Shareholders Pressure AT&T and Verizon Wireless Over Surveillance Role,” New York Times, November 20, 2013, http://www.nytimes.com/2013/11/21/technology/shareholders-pressure-att-and-verizon-wireless-over-surveillance-role.html; Lesley Clark, “Tech leaders urge Obama to ‘move aggressively’ on NSA reform,” McClatchy, December 17, 2013, http://www.mcclatchydc.com/2013/12/17/211913/obamas-a-house-of-cards-fan.html; Constitution Daily, “Can tech titans really tackle the NSA over the Constitution?,” December 11, 2013, http://blog.constitutioncenter.org/2013/12/howcan-tech-titans-really-tackle-the-nsa-over-the-constitution/; Natasha Lennard, “Goliath vs. Goliath: Why tech giants can’t break the surveillance state,” Salon, December 10, 2013,http://www.salon.com/2013/12/10/goliath_vs_goliath_why_tech_giants_cannot_break_the_surveillance_state/; Paul Lewis, “Tech giants’ demand for NSA reform ‘a major game-changer’, advocates say,” Guardian, December 9, 2013,http://www.theguardian.com/world/2013/dec/09/tech-giants-nsa-reform-surveillance-game-changer; Dana Liebelson, “Google, Yahoo, Facebook, and Twitter Have a New Lobbying Target—the NSA,” Mother Jones, November 15, 2013, http://www.motherjones.com/politics/2013/11/nsa-bills-google-facebook-yahoo-twitter-lobbying; Christopher Mims, “Cisco’s disastrous quarter shows how NSA spying could freeze US companies out of a trillion-dollar opportunity,” Quartz, November 13, 2013, http://qz.com/147313/ciscos-disastrous-quarter-shows-how-nsa-spying-could-freeze-us-companies-out-of-a-trillion-dollar-opportunity/; Patrick Howell O’Neill, “The NSA is crippling America’s economy,” Salon, November 27, 2013, http://www.salon.com/2013/11/27/the_nsa_is_hurting_americas_economy_partner/; Nicole Perlroth, “After N.S.A. Disclosures, Yahoo Moves to Encrypt Internal Traffic,” New York Times, November 18, 2013, http://bits.blogs.nytimes.com/2013/11/18/after-n-s-a-disclosures-yahoo-moves-to-encrypt-internal-traffic/; Dan Roberts and Jemima Kiss, “NSA surveillance: tech companies demand sweeping changes to US laws,” Guardian, December 9, 2013,http://www.theguardian.com/world/2013/dec/09/nsa-surveillance-tech-companies-demand-sweeping-changes-to-us-laws; Chris Strohm, “Silicon Valley nerds seek revenge on NSA spies with coding,” Sydney Morning Herald, November 18, 2013, http://www.smh.com.au/it-pro/security-it/silicon-valley-nerds-seek-revenge-on-nsa-spies-with-coding-20131117-hv3i7.html.html; David Talbot, “Internet Engineers Plan a Fully Encrypted Internet,” Technology Review, November 18, 2013, http://www.technologyreview.com/news/521621/internet-engineers-plan-a-fully-encrypted-internet/; Edward Wyatt and Claire Cain Miller, “Tech Giants Issue Call for Limits on Government Surveillance of Users,” New York Times, December 9, 2013, http://www.nytimes.com/2013/12/09/technology/tech-giants-issue-call-for-limits-on-government-surveillance-of-users.html
  17. [17]Jed S. Rakoff, “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?” New York Review of Books, January 9, 2014, http://www.nybooks.com/articles/archives/2014/jan/09/financial-crisis-why-no-executive-prosecutions/; see also Adam Liptak, “Stern Words for Wall Street’s Watchdogs, From a Judge,” New York Times, December 16, 2013, http://www.nytimes.com/2013/12/17/us/judge-raises-questions-on-the-paltry-effort-to-prosecute-wall-street-executives.html
  18. [18]Steven E. Barkan, Criminology: A Sociological Understanding, 3rd ed. (Upper Saddle River, NJ: Pearson Prentice Hall, 2006); Jeffrey Reiman, The Rich Get Richer and the Poor Get Prison, 7th ed. (Boston: Allyn and Bacon, 2004).
  19. [19]Steven Best, “It’s War! The Escalating Battle Between Activists and the Corporate-State Complex,” in Terrorists or Freedom Fighters? Reflections on the Liberation of Animals, Steven Best and Anthony J. Nocella II, eds. (New York: Lantern, 2004), 300-339; Jason Black and Jennifer Black, “The Rhetorical ‘Terrorist’: Implications of the USA Patriot Act for Animal Liberation,” in Terrorists or Freedom Fighters? Reflections on the Liberation of Animals, Steven Best and Anthony J. Nocella II, eds. (New York: Lantern, 2004), 288-299; John Sorenson, “The Myth of ‘Animal Rights Terrorism’,” Brock Review 12, no. 1 (2011): 91-99; Paul Watson, “ALF and ELF — Terrorism Is as Terrorism Does,” in Terrorists or Freedom Fighters? Reflections on the Liberation of Animals, Steven Best and Anthony J. Nocella II, eds. (New York: Lantern, 2004), 279-287.

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