Televised depictions of the cities in which I’ve lived have always captured my imagination — Law & Order gave me a taste of New York City long before I’d ever set foot in that city and David E. Kelley made Boston seem like it was full of diabolical whackos — but the way Washington, D.C., is drawn on the small screen goes a long way toward justifying why I find this city so compelling.
Two weeks ago, after the President’s national security address, I was left with little reaction other than the speech sounded good. The President made overtures to “refining” and ultimately repealing the AUMF. There was some measured rhetoric about drone warfare and a frank discussion about GITMO. The President even tolerated a heckler, but nothing about the speech appeared to suggest a serious re-evaluation of American national security policy. But as this week suggests, positive words, whether in a speech or in law, can easily be used to obfuscate more alarming acts.
This week, of course, came news that our government is collecting metadata of the phone calls of millions of (if not all) Americans. The time, location, and duration of our calls are being recorded, aggregated, and transformed into a vast network of personal information. Last night came the further revelation that the NSA has continued a vast data mining enterprise with the participation of every major tech company–Google, Facebook, Apple, Microsoft, Yahoo, Skype, YouTube, AOL. Whether through ignorance or an intentional gag orders, these tech giants have been forced to hem and haw about what exactly they know and what exactly they’re giving away.
As a number of people have recalled, then-Senator Obama cautioned against this sort of intelligence dragnet. “We have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power,” he said. “What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. These aren’t arbitrary ideas. These are the concrete safeguards that make sure that surveillance hasn’t gone too far. That someone is watching the watchers.”
Speaking to reporters today, the President has inverted his priorities: “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.” The problem is that “society” hasn’t made this choice; a small collection of government officials have.
There is little question that the letter of the law has been followed here. Both judicial review and congressional oversight are in place, but can anyone say whether they are effective? It’s impossible, because it’s all secret. Few members of Congress were aware of the breadth of these programs, and those that were legally prohibited from discussing them. Our congressional oversight effectively amounts to a handful of members, having access to sensitive documents within tightly controlled conditions without the resources to effectively “oversee” anything.
Meanwhile, to be blunt, our Foreign Intelligence Surveillance Court is a judicial rubber stamp. In 2012, 1,789 applications to conduct electronic surveillance for foreign intelligence purposes were made to the FISC. One was withdrawn. None were denied. A further 212 applications were made to the FISC to access business records. None were denied.
In February, I attended an address by Rajesh De, General Counsel of the NSA, wherein he attempted to disabuse the audience of several “myths” about the National Insecurity Apparatus:
False Myth #1: NSA is a vacuum that indiscriminately sweeps up and stores global communications.
False Myth #2: NSA is spying on Americans at home and abroad with questionable or no legal basis.
False Myth #3: NSA operates in the shadows free from external scrutiny or any true accountability.
At the time, I remember being struck by how much of his remarks focused on procedure and structural legalese. As Jennifer Granick put it today, however, the complexity of our national security laws are such that it allows officials to offer “non-denial denials” that mask the truth and obfuscate the bigger concerns. For example, it may well be true that the NSA neither sweeps up nor stores “communications.” But if collecting every phone number you dial, long your call last, and where both ends of the call came from are not legally “communications,” I imagine that might come as a surprise to most average people.The government’s initial response–both in the Administration and in Congress–have been dismayed and outraged at the “magnitude of the leak” involved. Jack Clapper, director of National Intelligence, has called this “unauthorized disclosure” utterly “reprehensible and risks important protections for the security of Americans.” Or perhaps these officials are more worried about a political backlash:
If so much information is being gathered about almost everyone to figure out patterns, then it’s not as though you’d be tipping off a particular target that we were on to him. Would publicizing the order that this information be collected have given away technical secrets to our enemies (or rather, at this point, has publicizing it done so)? I don’t see how. I can see why the government might want to keep this data-mining program secret to avoid a political backlash, but that is of course not a good reason for concealing it.
No laws have been broken. No single politician or political party alone should be blamed for this state of affairs, but we ought to become more mindful about the disconnect between the rhetoric surrounding government transparency and personal privacy and the actions of our society when these principles are at stake.
In an anecdote-filled piece on Republican obsolescence by Robert Draper in The New York Times Magazine, Draper discusses the results of a focus group of average Ohioans. When asked to describe the Republican brand, the following terms were generated:
When Anderson then wrote “Republican,” the outburst was immediate and vehement: “Corporate greed.”“Old.”“Middle-aged white men.” “Rich.” “Religious.” “Conservative.” “Hypocritical.” “Military retirees.” “Narrow-minded.” “Rigid.” “Not progressive.” “Polarizing.” “Stuck in their ways.” “Farmers.”
A number of those terms fit easily together, and I was struck instantly by the last term: “Farmers.” It’s no surprise that the Republican Party has an increasingly rural base.
Unfortunately for our ever-urbanizing country (and fortunate for our rural minority), the fruited plains and vast open “flyover country” that Republicans dominate affords them out-sized political power despite their dwindling numbers. While Democratic House candidates received more than 1.4 million votes than their Republican counterparts, they still face a thirty-some seat disadvantage in the House. Their Senate majority rests largely on Republican candidates that were . . . confused about rape. Combined with well-timed gerrymandering, the result is that Republicans have “drawn themselves into a durable House majority,” but one that is elected by “an alternate universe of voters that little resembles the growing diversity of the country.”
While the country has long trumpeted majority rule, Republican political power is the beneficiary of the powerful protections given to the minority in our Constitution. Instead, what the Constitution rewards political power to a landed majority. Since the Founding, agrarian America has been bolstered by structural guarantees such as the Electoral College and, yes, the long-stricken Three-Fifths Clause.
This made sense in Eighteenth Century when the American populace was widely dispersed throughout the former colonies. In fact, in 1790, at the time of the first Census, nearly 95% of Americans lived in rural areas. By 1900, this percentage had declined to 60%, but still, ensuring the political dominance of rural America still made sense. Today, rural America accounts for only 16% of the total population.
Republicans have embraced this 16% of the population to the country’s detriment. Certainly political polarization impacts the Democratic Party as well, but because Republicans can still have substantial national political power while representing a shrinking part of the country, the United States’ political development is stunted. Obviously, many parties instead see this state of affairs as an appropriate check on fluctuating democratic impulses. That notion may well be true in some circumstances, but because our politics has become perpetually locked into a two-party system, rural domination has unduly warped our political discourse. We have a party in lockstep with “conservative” rural interests against a broad base of “Democrats.”
As the Republican base has shrunk, the Democrats have become a big tent party. This creates its own set of problems: I was talking to a member of the Maryland state legislature, a state that’s utterly dominated by Democrats, and he bemoaned the single-party rule that’s spreading to more and more states. ”We should have Democrats versus Greens, and Greens could well represent farmers,” he said.
Instead, farmers are trapped with Republicans, and Greens are trapped with Democrats, and America suffers as a result. Our political discourse demands that we disconnect the landed majority from the trappings of political power. Some of this made sense at our Founding. It no longer does.