Authors: Mike Lofgren
Excuses ranged from supposed ostensible concerns of the next of kin to the need to protect proprietary contractor data to “just because.” We will probably never know why the Air Force chose to withhold the crash reports, but my guess is that it was to prevent relatives of casualties from filing liability suits for defective equipment. As we have seen, the genesis of the state secrets privilege was to allow the Air Force in 1953 to render inadmissible as evidence the report on the crash of a B-29 during a routine training flight.
Classifying information protects legitimate secrets, to be sure, but the process has gradually transmuted into a blunt instrument of political control. It separates the sheep from the goats in Washington: the political insiders with access to classified information from the rank outsiders without it. Kafkaesque actions like retroactive classification allow bureaucracies to demote, fire, or prosecute whistle-blowers who complain about agency malfeasance. Paranoia has reached the point where workers in federal cafeterias must now undergo extensive (and expensive) background checks. Some agencies even require a top-secret clearance
for their cooks.
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But classification is also used as a tool to shape political debate.
The ship of state, the only known vessel to leak from the top, discreetly feeds to journalists tidbits of classified information that make the administration look good and its political opponents look bad. The practice has the tendency to make journalists dependent on their sources and inclined to depict them favorably. Congressmen on the Intelligence committees who are “read in” to “beyondâTop Secret” programs cannot discuss them even with their colleagues off the committees, thus stifling debate and impairing informed decision making on national security matters. There is no more potent sign of the triumph of the Deep State than the fact that contractor personnel are empowered to vet the secrets our elected officials are allowed to see. It remains to be seen whether the Senate's challenge to the cult of secrecy marks the beginning of a pushback against an out-of-control national security state, or whether it was merely an episodic spat occasioned by the bruised egosâwhich I can assure the reader are often as big as supernovasâof our current crop of senators.
Will the Supreme Court Rein In the Surveillance State?
A handful of senators does not a revolution make, but there are some indications that across the street from the Capitol, the justices at the Supreme Court are beginning to have reservations about the Panopticon state that has metastasized since 9/11. In June 2014 the court made a surprising ruling on the legal admissibility of cell phone data obtained without a judicial warrant. Law enforcement organizations naturally argued that warrants were not needed, in line with their perennial contention that unless the courts grant them police-state powers and complete immunity from wrongdoing, public safety will be endangered and officers' lives will be at risk. Since the demise of the Warren Court, and particularly since 9/11, America's court of last resort has normally found in favor of an authoritarian interpretation of police and national security powers.
This time, however, was different. The court ruled unanimously that a judicial warrant was required because the vast amount of personal data on a cell phone renders it qualitatively different from inspecting the contents of a wallet.
The ruling was carefully hedged to avoid inviting challenges to the admissibility of NSA surveillance, but it was nevertheless significant both for the unanimity of the verdict and its unambiguousness. It was certainly surprising to find that the most reactionary high court since the Gilded Age had ruled in favor of individual liberties against the prerogatives of the state. Perhaps the fact that the case did not involve corporate interests permitted it (one might have expected the phone manufacturers and carriers to have filed an amicus curae brief to demonstrate their newfound concern for their customers' privacy; alas, that did not happen).
Beyond the plain constitutional arguments on the narrow matter of domestic law enforcement, it is also possible that after an entire year's headlines about the fragility of personal privacy in the computer age, the justices just may have been spooked by the implications of the surveillance state. Or perhaps, despite the hackneyed government slogan that if you have nothing to hide you have nothing to fear, the truth is that
everybody
âeven a robed chief justice on his alabaster throne in the temple of the Supreme Courtâhas something to hide and something to fear.
Silicon Valley Challenges the NSA
The final player challenging the Deep State is Silicon Valley. Owing to secrecy and obfuscation, it is hard to know how much of the NSA's relationship with the Valley is voluntary, how much is legally compelled through Foreign Intelligence Surveillance Act warrants, and how much is the NSA surreptitiously breaking into the tech companies' systems. Given the Valley's need to mollify customers with privacy concerns, it is difficult to take their protestations at face value. But evidence is accumulating that the Valley is losing billions in overseas business from companies, individuals, and governments that want to stop using the services of
American tech companies.
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For high-tech entrepreneurs, the cash nexus is ultimately more compelling than the Deep State's demand for patriotic cooperation. Even legal compulsion can be combated: unlike individual citizens, tech firms have deep pockets and batteries of lawyers with which to fight government diktat. Silicon Valley is now lobbying Congress to restrain the NSA, and some tech firms, such as Microsoft, Google, and Yahoo, are moving to encrypt their data.
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This pushback has borne fruit. On January 17, 2014, President Obama announced several revisions to the NSA's data collection programs. These included withdrawing the NSA's custody of a domestic telephone record database, expanding requirements for judicial warrants, and ceasing to spy on (undefined) “friendly foreign leaders.” Critics have denounced the changes as a cosmetic public relations move, but still they are politically significant. The clamor was loud enough for the president to feel the need to address it.
Microsoft is fighting the government's effort to access its email storage overseas. The Justice Department has issued a search warrant demanding access to the data in its servers in Ireland, and the company has challenged the warrant's legality in a lawsuit. Microsoft's motive is obvious and an amicus brief made it explicit: if the United States can legally obtain customer data physically located in a foreign country, foreign individuals and businesses will abandon Microsoft in favor of non-U.S.-based competitors. However self-interested the suit may be, Microsoft is fighting on behalf of a principle: does the United States have the right to extend its jurisdiction to other countries on a routine basis without gaining that government's approval?
Ordinarily, the United States must abide by its mutual legal assistance treaties with other countries. In the Microsoft case, an Irish court would have to approve the request for the email data. The administration has argued that the location of the servers holding the data is irrelevant because a U.S.-headquartered company, Microsoft, is subject to the warrant. Such an expansive interpretation, if upheld, would mean that the United States purports to exercise legal jurisdiction over the entire
planet. Several hundred years of international law and state treaties would be invalidated by this novel precept. For the courts this will be a difficult conundrum to unravel: the Deep State, which has so far mostly gone undefeated in judicial venues, will be pitted against the claims of corporations, which have prevailed in most legal disputes over the last thirty years.
Silicon Valley is clearly ambivalent toward the NSA. It has collaborated with the agency on surveillance, and has even benefited in past years from seed money from the intelligence community; yet it has now experienced the downside of a hostile public reception at home and lost sales abroad. Apple has reacted by making the data encryption of its iPhone 6 so advanced as to be very difficult to crack; James Comey, the FBI director, has publicly complained that it will greatly complicate law enforcement's ability to access user data.
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Comey's concern is not a trivial one: our country should have the means to intercept the communications of criminals or violent extremists, subject to proper safeguards. But the legal and constitutional overreach of America's spy agencies and their contempt for congressional oversight made a scandalous revelation like Snowden's almost inevitable. That, in turn, was bound to force Silicon Valley's hand. With the public agitated over the security of their electronic devices, the IT industry did what any business must: respond to its customers, in this case by offering enhanced data encryption.
Silicon Valley's ambivalent position is reflected in the fate of the Stop Online Piracy Act (SOPA), which has been pending since 2011. While some segments of Silicon Valley, like the Business Software Alliance, supported this sweeping expansion of copyright privileges for intellectual property claimants, others grew leery of the bill's legal requirement for heavy-handed policing of the web by search engine providers like Google. Among the provisions in the bill was an authorization of court orders prohibiting advertisers and payment facilities from transacting with websites that infringed copyright, a ban on search engines displaying those websites, and court orders blocking Internet access to those
websites. While Google has no compunctions about collecting user data on its own for profitable commercial purposes, it has no desire to be held liable if a pirate website happens to turn up in its search results. Parallel to this, a significant grassroots movement welled up to kill the legislation. The public reaction was quite unlike the 1990s, when telecommunications and copyright legislation sailed through Washington while the public hardly noticed. This time, Congress was forced to listen, and for now at least, SOPA is dead.
Whatever we might think of the moral propriety of Edward Snowden's theft of mountains of data from the NSA, it was one of the most politically consequential acts of recent years. It partially woke a lethargic Congress, prodded a Supreme Court normally subservient to national security claims to give more weight to individual privacy concerns, and shook Silicon Valley from its incestuous relationship with the intelligence community. But is that enough? Can this tentative rethinking gain enough momentum not just to score a few sporadic victories but to change the course of the national security state?
Overcoming the accumulated errors of our recent political path will require coming to terms with who Americans are, and who we want to be. It also means we will have to change the deeply ingrained habits of mind of our leadership class and the manner in which they look at the outside world.
Great nations need organizing principlesâand “Don't do stupid stuff” is not an organizing principle.
âHillary Clinton, interview with
The Atlantic
, August 8, 2014
Mit der Dummheit kämpfen Götter selbst vergebens.
(The gods themselves contend in vain against stupidity.)
âTalbot in
Die Jungfrau von Orleans
, by Friedrich von Schiller, 1801
Doubling Down on Failure
America's future course is uncertain: whatever Bayesian analytics might claim, the future is not scientifically predictable. The Deep State has until recently seemed unshakable, and the latest events may only be a temporary perturbation in its trajectory. But history has a way of toppling the altars of the mighty.
While the two great materialist and determinist ideologies of the twentieth century, Marxism and neoliberalism, respectively decreed that the dictatorship of the proletariat and the dictatorship of the market were inevitable, any such determinism is illusory. Deep economic and social currents may create the framework of history, but those currents can be channeled, eddied, or even reversed by circumstance, chance, and human action.
Throughout history, state systems with outsized claims to power have reacted to their environment in a peculiar way. Their strategy, reflecting the ossification of their own ruling elites, consisted of repeating that nothing is wrong, that the status quo reflected the nation's unique
good fortune in being favored by God, and that those calling for change were merely subversive troublemakers. As in the cases of the French ancien régime, the Romanov dynasty, and the Habsburg empire, the strategy worked splendidly for a while, and then it didn't. To rephrase Hillary Clinton's statement, stupidity
was
their organizing principle, just as it has been for the American foreign policy Mrs. Clinton helped administer for four years. The final results in all such cases are likely to be disappointing.
Why do powers behave this way? Like the functionaries of empires of the past, the administrators of the Deep State have grown so used to getting their way through payoffs, backstairs maneuvering, force majeure, and the absence of anyone calling them to account that they have grown complacent, self-referential, and inwardly focused on their own processes. This mind-set is clearly visible in foreign policy. Whether the issue is Syria, Ukraine, or Iran, the framing device through which America's power elite sees the particular problem is lacking both a dispassionate examination of the complex history of the dispute and a pragmatic search for a solution.
As seen through the lens of Washington, other countries are not permitted to pursue their own conceptions of their legitimate national interest. Any foreign action perceived to conflict with America's grandiose conception of its destiny is automatically deemed hostile. As reflected through the media (which takes its cues and many of its commentators from the power elite), the picture becomes even more distorted, to the point that a crisis in a foreign land is not about that country at all; it's about us: Is the president “standing tall” or will he “cut and run?” How will it affect the New Hampshire primary?
This distorted framing device of course applies to domestic issues as well. Hank Paulson and Timothy Geithner rejected putting banks into receivership and replacing their executives because people with their backgrounds could not conceive of such a thing. The only thing to do was to bail out the banks and let top management keep their bonuses. Likewise, a global tax on financial transactions, which could go some distance toward curbing pernicious activities like high-frequency trading, was
instantly off the table: Geithner was as incapable of grasping its merit as Hillary Clinton was blind to the merits of using diplomacy rather than force in Libya. President Obama hobbled his own health care proposal by declaring from the outset that a single-payer system was a nonstarter. He could have gotten a better bill, even if he did not envision legislation containing a single-payer system, by keeping it as a bargaining chip till later in the game. But he was a prisoner of the Washington consensus, which decrees that the wiser course is to cave to the lobbyists at the outset.
This intellectually incurious and self-referential aspect of the American elites makes them appear autistic to the observer. How else to account for Secretary of State John Kerry's impassioned tirade after Russia's takeover of Crimea: “You just don't, in the twenty-first century, behave in nineteenth-century fashion by invading another country on a completely trumped-up pretext.”
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Now most Americans might think twice about making such a statement in view of our own recent military record: after all, Kerry spent the better part of 2004 having to explain why he voted to invade Iraq if he was so critical of George W. Bush's war. Of all people, he should have been able to avoid that minefield when discussing Russia's aggressive actions. But the American press rarely asks our leaders to account for such statements; the moderator of
Face the Nation,
where Kerry made the comment, failed to call him out.
Kerry was at it again a couple of months later, showing how our national security establishment projects its own less admirable qualities onto those it considers rivals or threats. In an interview with the
Wall Street Journal,
he laid into Russian president Vladimir Putin: “You almost feel that he's creating his own reality, and his own sort of world, divorced from a lot of what's real on the ground for all those people, including people in his own country.”
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The Russian president is many things, a lot of them unpleasant, but delusional he is not; the diagnosis would seem perfectly applicable to Kerry himself and the rest of the national security establishment in Washington, whose benchmark for understanding international crises typically arises from domestic considerations. The tangled, millennia-old story of Syria and Iraq or Afghanistan, or the
complex ethnic hatreds of the Balkans vanish before a few sonorous phrases like “regime change,” “responsibility to protect,” or “humanitarian intervention.” This mind-set leads to predictable disasters from which the political establishment never learns the appropriate lessons.
In an interview with
The Atlantic
in August 2014 in which she distanced herself from Obama's foreign policy, Hillary Clinton downplayed recent Middle East disasters (and her role in supporting them) with a sweeping generalization, suggesting that everything will come out right in the end if we just stay the course: “You know, we did a good job in containing the Soviet Union but we made a lot of mistakes, we supported really nasty guys, we did some things that we are not particularly proud of, from Latin America to Southeast Asia, but we did have a kind of overarching framework about what we were trying to do that did lead to the defeat of the Soviet Union and the collapse of Communism. That was our objective. We achieved it.”
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To describe the debacle of Vietnam as a “mistake” is like saying that contracting Ebola is equivalent to getting the sniffles. Our cold war policy of arming and training the Mujahidin in Afghanistan, which merely weakened a Soviet Union already in terminal decline, helped give rise to the very problems in the Middle East and South Asia that she thinks we can solve by employing the cold war model. Clinton goes on to complain that too many people fail to grasp the subtle genius of U.S. foreign policy because policy makers don't bother to explain it. “We don't even tell our own story very well these days,” she said, suggesting that a corporate rebrand is all that is needed.
Bombing Syria to Impress Japan
Kerry and Clinton are by no means the worst exemplars of these tendencies. Anne-Marie Slaughter, Clinton's director of policy planning at the State Department from 2009 to 2011 and now president of the New America Foundation, a 501(c)3 nonprofit that receives contract money from the U.S. Agency for International Development and a handful of
rich donors, responded to the Ukraine crisis with a call for action that was mystifying and reckless at the same time. In a commentary titled “Stopping Russia Starts in Syria,” Slaughter argues that in order to show Putin that he means business, President Obama should lay on an intervention in Syria. And not some namby-pamby drone strike or covert actions, either, but a full-on, shock-and-awe military attack. The result, she says, “will change the strategic calculus not only in Damascus, but also in Moscow, not to mention Beijing and Tokyo.”
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Bombing Damascus will change the strategic calculus in Tokyo?
Slaughter, who made her way up through the foreign policy establishment vetting system by way of Princeton (the Woodrow Wilson School), Harvard Law, and even in the bosom of the imperial mother country with a stint at Oxford, is an unusually pure example of the Eastern Seaboard foreign policy intellectual. The argument in her commentary boils down to saying that in order to punish Country A and make it desist from doing something your foreign policy establishment doesn't like, you should bomb Country B; the action will also impress Countries C and D.
Slaughter has all the credentials of what is usually considered a liberal internationalist, but her argument is no different from the foreign policy recommendation made a dozen years before by the very same neoconservatives who later came in for so much criticism from the liberals: “Everyone wants to go to Baghdad. Real men want to go to Teheran.”
*
While these two foreign policy labels, that of the “liberal internationalist” and the “neoconservative,” appear to contest each other on ideological grounds, the only real difference is who gets the spoils of high office and the attendant private sector rewards afterward. Anne-Marie Slaughter's brand of foolishness is bipartisan and enjoys a long pedigree. In 1975, our country squandered forty-nine service members to “rescue” the SS
Mayaguez
when steps were already under way to gain the peaceful return of the ship and its crew. Why? Because Secretary of State Henry Kissinger felt that “the United States must carry out some act somewhere in the world which shows its determination to continue to be a world power.” These foreign policy recipes remind one of the British quip that became common after a long string of military disasters in 1942: “When all else fails, invade Madagascar.”
There is something darkly humorous in all this, but the public would find it less amusing to contemplate how the knee-jerk policy reflexes of our foreign affairs mandarinate frequently diminish, rather than enhance, our actual physical security. The U.S. government's overt and covert meddling in Ukrainian politics has stirred up a hornet's nest and threatens to maneuver the United States and Russia into an open cold war. This may be good news for the people leading governments in Warsaw, Tallinn, or Riga, who for good reasons of geography and history dislike and distrust the Russian state and who may wish to have an American senior partner to aggressively defend their interests, but it all but guarantees that for the foreseeable future, Russian intercontinental ballistic missiles carrying nuclear warheads will be targeted on Washington, D.C., New York, or Chicago, rather than on Teheran, Islamabad, or Beijing. It also greatly diminishes the chances that those Russian missiles might be scrapped after an arms agreement. We were all very lucky that the cold war ended without the nuclear trigger being pulled, but that does not ensure that our luck will always hold should there be a new cold war. Our foreign policy elites nevertheless cling to a superstitious belief in divine protection for America. As German chancellor Otto von Bismarck famously put it: “It has been said that a special Providence watches over children, drunkards, and the United States.”
The quality of blind self-absorption is not confined to our national security elites. Many Wall Street and Valley billionaires, living a hermetically sealed existence surrounded by sycophants and coat holders, appear genuinely surprised that their public reputation is not that of heroic entrepreneurs selflessly creating jobs for employees and value for shareholders,
but rather of greedy buccaneers who are not above exploiting labor and shortchanging investors or depositors.
Since these superrich elites are beyond reproach in their own minds, they interpret the criticism as victimization. When Obama suggested eliminating the “carried interest” loophole so that hedge fund managers would have to pay the same federal tax rates on their income that ordinary Americans pay, Stephen Schwarzman, the Blackstone Group CEO, said, “It's war. It's like when Hitler invaded Poland in 1939.”
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Pretty strong stuff, considering that Obama's suggestion went nowhere, nor did he even push it very hard. Silicon Valley venture capitalist Tom Perkins continued with the Nazi trope, writing a letter to the
Wall Street Journal
to “call attention to the parallels to fascist Nazi Germany in its war on its âone percent,' namely its Jews, to the progressive war on the American one percent, namely the ârich.'”
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Oh, the humanity!
ISIS: Iraq War 3.0
The national security sector of the Deep State achieved a zenith of incoherence in June 2014, during the advance toward Baghdad of the insurgent group ISIS. Having already committed advisers and drones to shore up the corrupt and incompetent Iraqi government of Nouri al-Maliki, the Obama administration announced on June 26, 2014, that it was asking Congress to appropriate half a billion dollars to arm and train rebels fighting Syrian dictator Bashir al Assad.
The request meant that the United States government would be giving lethal support to Syrian rebels, the most effective military element of which was ISISâa group we were bombing just across the border in Iraq. Put bluntly, the operatives of the Deep State committed the American people to supporting both sides of a transnational Sunni-Shi'a religious war. Accompanying the request were the predictable useless assurances that we would be able to distinguish between armed factions in a sectarian conflict whose origins most of the so-called national security experts in Washington patently do not understand.