Common sense is not so common. The “Snowden saga” three months on. Part three: It really isn’t that common. Rounding up opinions.

Information Dominance: A dangerous enterprise

People like Edward Snowden, Thomas Drake or Chelsea Manning can be as reasonable as they like; there will always be those who say that surveillance of the kind and magnitude that has been revealed over the past months is a good and necessary thing. Because it protects us all from terrorists, the argument seems to go, people should not be allowed to question, let alone expose its practices. Hence, we need policies to restrict whistleblowing. Yochai Benkler, in a brilliant op-ed in the Guardian sums up the problem: “Serious people with grave expressions will argue that if we do not ruthlessly expand our intelligence capabilities, we will suffer terrorism and defeat. Whatever minor tweaks may be necessary, the argument goes, the core of the operation is absolutely necessary and people will die if we falter.”

Calls for tougher legislation are exemplary of this and government responses to whistleblowing in general, both in the UK and in the US; governments do not encourage whistleblowing. They do not like how it makes them look. (Seriously, who is fooled by their sudden, hasty readiness to take part in a debate that they cannot quench anyway?)

Consider Sir Ian Blair, the former Met Commissioner (this is in the UK), who has just asked for “laws to stop the ‘principled’ leaking of state secrets”.

Lord Blair said that “tougher laws are needed to prevent members of the public from revealing official secrets.” He claimed that the threat from international terrorism was “constantly changing” and that there was a need to “review the law”.

I don’t know about you but I find this disconcerting.

For one thing, isn’t it an extremely patronizing thing to say that “somebody, for all sorts of wonderfully principled reasons, [might wish] to disclose those secrets”?

My italics and is that to suggest that none of us have the right to know if the state is abusing its powers? Yes, we do. If not on some wonderful moral principle, then because accountability is a principle of democracy. I am wondering if Lord Blair would suggest that all those wonderful principles on which our states have been built are so quaint that they become insubstantial in the face of some obscure terrorist threat. I hope not because that would be nonsense; one of the reasons for people to form communities and states and to elect governments is so they can feel protected from the tyranny of others. So they can live free, independent and private lives. Make no mistake; the state, the government, has no right to violate your basic civil or human rights. And when it does, it needs to be held accountable. That is why, as Thomas Drake says, “[t]here’s no room in a democracy for [the] kind of secrecy” that the advocates of surveillance are telling us is necessary for our own protection.

Yet, the argument that has been advanced time and time again is that it is “extremely dangerous for individual citizens to [make state] secrets available to […] terrorists”, implying that this is primarily what this is about, that none of us can know what the state is up to because the terrorist might be listening! And it is also because of those terrorists who are hiding behind every corner these days, “[b]ecause of the crisis, because of the dangers we face in the world, some new and unpredicted threat, [governments] need more authority [and] more power”.

Edward Snowden realized that this argument is flawed. As Thomas Drake points out, Snowden “saw the surveillance state from within and saw how far it’s gone” to get that power. Like Thomas Drake, “he became discomforted by what he was exposed to and what he saw.”

Edward Snowden understood the implications and potential consequences of that kind of surveillance power and behaviour and he acted upon that understanding. In that sense he displayed exactly the kind of “sound judgement” that many understand common sense to mean (although the term obviously has multiple other meanings too). Except, he also had the specialist knowledge to make an informed judgement as well.

By contrast, not only did both the NSA and government commit legally questionable and morally inexcusable acts, they also at best left an appropriate response to the revelations far too late and – at worst – lied. And not just to the people but to the FISA court as well.

Barack Obama still insists that neither the US government nor the NSA “surveil the American people or persons within the United States. There are a lot of checks and balances in place designed to avoid a surveillance state.”

I find it –shall we say- interesting that the president should still insist on this, especially when recalling Al Gore’s comments on how a police state apparatus is effectively in place in the US (about which he is not wrong) or given that NSA chief Alexander not only lied to Congress but apparently had a war room built into his tellingly named Information Dominance Centre (that’s right Dominance) that intentionally resembles the bridge of the USS Enterprise. Apart from being a telling comment on the mind-set of the man (I wonder if he fancies himself Kirk or Picard and if the irony is really altogether lost on him), the Enterprise’s war room‘s “primary function is to enable 24-hour worldwide visualization, planning, and execution of coordinated information operations for the US Army and other federal agencies” boasting a “prominently positioned chair [which] provides the commanding officer an uninterrupted field of vision to a 22’-0″ wide projection screen.” Nuff said.

Or no, not enough said because it gets better than that. Former NSA and CIA director Michael Hayden not only claims the internet as basically the US’s own. He has also “conceded that” – wait for it – the US “could be fairly charged with the militarization of the World Wide Web.”

Errrr…yeah. In light of this, do you not agree that going on about the so-called checks and balances is getting outdated and unconvincing? More so because it has emerged that the NSA has repeatedly violated its own restrictions and that the information collected through NSA surveillance is shared with other countries. Violations are real and so disturbing that “[a] judge on the secret surveillance court […] questioned the viability of [the NSA’s] bulk collection of Americans’ phone records.”

Uncomplicated Lives: the cost of living freely?

Now. Given what we have learned, do we really think it is wrong to expose the scope of surveillance so that we can discuss it and make up our own minds about it?

Then again, perhaps we’d rather not complicate our lives by thinking about, let alone standing up against, these practices. After all, Edward Snowden himself has conceded that “living unfreely but comfortably is something [many of us are] willing to accept […] it’s the human nature.”

The danger of that of course is that we fail to notice when governments start working against us – and we are seeing increasingly how real that danger is.

“Eventually there will be a time where policies will change because the only thing that restricts the activities of the surveillance state are policies.” Edward Snowden, June 2013.

I think what Edward Snowden meant when he said this was that the state will adjust policy to its needs. And the moment that happens policy is meaningless. The moment that the state changes that which restricts it to give itself more power, meaningful restrictions cease to exist. This is a dark and dangerous road and history has shown more than once where it can lead. Again in his Guardian op-ed, Yochai Benkler brilliantly states that “[t]he American body politic is suffering a severe case of auto-immune disease: our defense system is attacking other critical systems of our body”.

Cue Lord Blair who in the UK warns against a “new threat which is not of somebody personally intending to aid terrorism, but of conduct which is likely to or capable of facilitating terrorism” and then calls for tougher legislation to prevent whistleblowing, citing “the examples of information leaks related to Bradley Manning and WikiLeaks”. Of course, if you take up Lord Blair’s argument, then anyone blowing the whistle – and anyone reporting on that whistleblowing – could be accused of facilitating – or condoning – terrorism.

Sound familiar?

Yap, UK Home Secretary Theresa May said something to that effect in response to criticism of the use of schedule 7 powers against David Miranda: “Those who oppose this sort of action need to think about what they are condoning.”

Similarly, Louise Mensch argues in her blog that “the Terrorism Act does not only apply to men with bombs and guns. Interrupting electronic systems to influence the govt of a foreign power for political purposes is EXPRESSLY COVERED.”

She goes on to cite the Terrorism Act, specifically the part where it says, “Terrorism is defined in the Terrorism Act 2000 (TACT 2000) and means the use or threat of action where –

  1. 1.     The action –

E. is designed seriously to interfere with or seriously to disrupt an electronic system AND

2. The use or threat is designed to influence the government or to intimidate the public or a section of the public, AND

3. The use or threat is made for the purpose of advancing a political, religious or ideological cause

Ms Mensch maintains that “1 E, 2, 3 are absolutely covered [in Miranda’s case].”

Errrr… no they aren’t.

Even if David Miranda was carrying classified information – how does that qualify under 1E?

As for 2: yes, perhaps Glenn Greenwald, Edward Snowden, David Miranda, Laura Poitras and other journalists are trying to influence government by making these things known. They should be. But are they trying to intimidate the public? I’d think not. Rather, their interest seems to be to inform the public, perhaps even to embolden the public to influence their government – which the public has every right to do; it’s called democracy.

And as far as 3 is concerned: where precisely is the threat here? Or the direct action to advance a cause? Besides, am I the only one who thinks that there is a problem here with the wording of the Act itself? Because couldn’t it be said of anyone that they are using action to advance a political cause who, for example, launched an election campaign?

Talk about common sense being not so common.

Ms May, Ms Mensch, Mr Blair, can I just ask: are you insane? Surely, you do not mean to suggest that everyone demanding freedom of speech, a free press, freedom from suspicion, innocence until proven guilty is condoning or aiding terrorism?

Now, where have I heard this before about how the charge of aiding the enemy “can be made against anyone who reveals information that points out mass surveillance systems”? Oh, that’s right. Edward Snowden, June 2013:

“They are going to say I have aided our enemies in making them aware of these systems. But this argument can be made against anyone who reveals information that points out mass surveillance systems.”

As to that, I have a question: has anyone actually seen conclusive evidence that anything Snowden made available has helped terrorists? Steve Chapman asked the same question – and it is telling that no official source was willing or able to provide a clear answer. Similarly, Nigel Inkster, former deputy chief of MI6 very recently repeated once again that “those most interested in the activities of the NSA and GCHQ have not been told very much they didn’t know already or could have inferred.” As such, “Al-Qaida leaders in the tribal areas of Pakistan [have] been “in the dark” for some time – in the sense that they [have] not used any form of electronic media that would “illuminate” their whereabouts”. Similarly, “[o]ther “serious actors” were […] aware of the risks to their own security from NSA and GCHQ eavesdroppers.”

So again, call me a Snowdenite but I for one yet have to see evidence that his disclosures did harm the US in any other way than to tarnish their international reputation – and that for very good reason.

Not only does what the US government said about “the people at the NSA [not having] an interest in doing anything other than making sure that (…) we can prevent a terrorist attack” has been proven a lie by revelations such as the UN spying operations. These revelations also raise important questions about what kind of advantage the US hopes to gain from these particular operations. Keith Alexander wants to take over the universe obviously – has has already built his spaceship. The rest of them might be satisfied with the world for now. To boldly go where no has gone before and all that. Seriously. Who else is shaking their heads in incredulity?

Definitely not so common.

Snowden: “I know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society.”

Well, we have seen examples of that control over both American and global society, haven’t we? And still people like Rick Ungar take issue with Snowden alerting the world to the scope of foreign intelligence, advancing the argument that “there is no claim nor evidence that spying on foreign entities crosses any legal lines and, therefore, it is incredibly wrong for Snowden to reveal data involving our spying programs outside the country”. That claim is simply false because spying on the UN is illegal under international law and violates a number of international treaties such as the Vienna Convention.

More than that, what the US is doing is affecting everyone, so everyone has a right to know – at least as long as what’s affecting us is illegal and committed against people who clearly aren’t the US’ enemies (and for everyone else it is still debatable).

Edward Snowden understands that: “It is a grave violation of our universal human rights when a political system perpetuates automatic, pervasive, and unwarranted spying against innocent people. In accordance with this belief, I revealed this program to my country and the world.” Because it isn’t just innocent Americans that are being spied on; it is innocent people everywhere in the world.

Okay, you could say that other governments are doing the same thing but simply pointing a finger at someone else and saying that they’re doing it too does not excuse your own actions when they are wrong. It just makes you look childish.

I find position’s like Ungar’s worrying for other reasons as well. Just because secrecy is in the nature of spying does not make it right. Neither does the alleged necessity for covert operations by its very nature defy the right to know when covert activities are being abused.

Just as a side note, am I the only one puzzled by Ungar’s suggestion that “that the overwhelming majority of Americans would very much disagree with [Snowden’s] assessment [that all spying is wrong]” – an assessment for which Ungar does not actually give any evidence because once again, this is not what Edward Snowden said? What he actually said was: “I did not reveal any US operations against legitimate military targets. I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. These nakedly, aggressively criminal acts are wrong no matter the target.”

Even more puzzling is Ungar’s argument that “[the majority of Americans] might appreciate his [i.e. Snowden’s] not complicating our lives in furtherance of his own self-aggrandizement and the soothing of whatever crisis of conscience he may be experiencing.”

My italics and can I just say: well done? I, for one, am not sure that the majority of Americans would agree with that statement. And supposing they do, then it just proves once again that “living unfreely but comfortably is something [many of us are] willing to accept.”

In which case, yes, Snowden has probably “blown it” – for Mr Ungar and everyone else who prefers to continue living comfortable lives based on the naïve faith that the government knows best and that “we elect people to make decisions […] and then judge the effectiveness of those decisions by deciding who we will keep in office and who we will turn away.”

Well. The problem with that is of course that if people like Edward Snowden didn’t alert us to what the people we have elected do against us in our name, then we would be incapable of making informed decisions. Without that information, how are we supposed to “[either support or reject] opinions and practices […] when [we] show up to vote”? The simple answer is that we can’t – and I suspect we may not be supposed to either (type the words “managed democracy” into Google and you see what I mean – if you dare, that is).

Sadly, I think that Mr Ungar, just like many of Snowden’s other critics have fallen victim to exactly the mind-set that Snowden himself identified: “We were actually involved in misleading the public and misleading all the publics, not just the American public, in order to create certain mindset in the global consciousness.”

Mislead publics

I have come across that mindset many times in recent months and I was quite shocked by how pervasive it is.

Ironically, one person who seems to be arguing precisely from that mindset is none other than Benedict Cumberbatch. Yes, I know, him again, of all people, but he’s as good an example as any. (Besides, I like writing about him, I never know if I find him charming or just utterly unlikeable, and he’s just happened to prove my point point for me.) In a recent interview preceding the release of his latest film The Fifth Estate, Mr Cumberbatch advanced the argument that Chelsea Manning “broke a law. [Sh]e knew what [s]he was doing. [She] did what [s]he did out of a conviction that an alarm bell needed to be sounded. But [her] superiors might have been right to say to [her], it’s not your position to be worried about it within the hierarchy of the military organisation, which is why [s]he had to be sentenced. [She] took an oath, and [she] broke that oath.” (My italics).

I don’t even know where to begin counting the ways in which that argument is flawed. Perhaps by suggesting that Mr Cumberbatch should have said that Chelsea Manning had very good reason to believe that an alarm bell needed to be sounded. Perhaps Mr Cumberbatch should have left it at that. With regard to the rest of that statement, I should like to ask him: are you implying, Mr Cumberbatch, that the moment anyone swears an oath, there is nothing that justifies breaking that oath? Not even serious violations of morality, human rights and human life? Are you implying that anyone who swears an oath then turns into a mule of the organization they have sworn allegiance to and that they relinquish both their right and their obligation to be worried when something goes significantly wrong within that organization? Even when that organization or the people it is comprised of themselves act in violation of their oaths? Are you implying that an oath – or given organizational hierarchies for that matter – demand blind obedience of us? Surely not! In fact, if anyone still holds that view, it is deeply worrying, especially in a 21st century democratic society. Or, as Yochai Benkler puts it: “Demand for blind faith adherence is unacceptable.” And by the way, there is nothing honourable in observing an oath when it means condoning criminal acts.

Now, I am not saying that no one should be held to their promises anymore. Nor am I arguing that no one who breaks an oath should be held accountable. But surely, what we need to strive towards is an assessment of such cases on an individual basis. To simply say a person broke their oath and for that they need to be punished is making it too easy for ourselves.

As for Mr Cumberbatch’s other argument that “if they [i.e. the government and intelligence agencies] are saving lives [by spying on us], how can we say that’s less important than civil liberties? You don’t have any civil liberties if you’re dead. Isn’t it hypocritical to say, we should know everything about you as a government, but the government can’t know anything about us?”

The simple answer to the last question is: no, it isn’t. There’s nothing hypocritical about saying that we should know everything about our governments while the government can’t know anything about us. Mr Cumberbatch may have a point when he says that “if you are a private individual who’s packing semtex to kill people and destroy what we know as democracy for political purposes, then you’re more than just a private individual.” However, that argument also applies to the government. The government is not a person but an institution and the rights of an individual do not apply to it in the same way as they do to persons. More importantly, suggesting that citizens somehow do not have a right to know what their government is doing goes against accountability as a principle of democracy. If we do not know what our government is up to then how are we to hold it accountable if it puts in place practices that are themselves a threat to “what we know as democracy”?

As for the other argument about you not having any chance to enjoy your civil liberties when you’re dead. Well, yes of course that’s obvious but that argument is made from too limited a perspective. The theoretical threat of people dying is not necessarily justification for curtailing fundamental civil liberties. Especially when that threat has been overstated or when it cannot be proven that the curtailing of civil liberties actually serves to alleviate that threat. Writes Yochai Benkler: “Court documents released this week show that after its first three years of operation, the best the intelligence establishment could show the judge overseeing the program was that it had led to opening “three new preliminary investigations”. This showing, noted Judge Walton in his opinion, “does not seem very significant”.

The idea implicit in Mr Cumberbatch’s position – and that of many others who think like him – that civil rights abuses by governments and intelligence agencies are excusable in certain situations and, more worryingly still, that “oath”-breakers like Chelsea Manning and Edward Snowden deserve what they have coming to them is alarming. [Update: to be fair to Mr Cumberbatch, his comments come across as more as problematic in the edit than they do in the interview transcript. The Guardian acknowledges that his comments were originally misrepresented and I can see why Mr Cumberbatch would be trying to understand the opposite perspective – i.e. governments and intelligence agencies – in addition to his own. Clearly, he does not necessarily think that Chelsea Manning deserved her sentence and he is worried about the direction that mass surveillance and government policy is moving in. In fact, many of his comments quite match my own opinion, although I fundamentally disagree that the treatment of Chelsea Manning is right from any perspective. The reason I am not removing my above argument is that I am sure a lot of people do hold problematic views like the ones I have been trying to argue against. Apologies, though, to Mr Cumberbatch for reacting to a misrepresentation of what he said!].

What we are witnessing at the moment testifies to the fundamental need for the citizens of a democracy to be able hold state institutions accountable. The NSA needs to be held accountable for “misrepresent[ing] the extent of its activities in collecting Americans’ phone records and violat[ing] court-ordered restrictions on the ability of the government to access such data”.

Even the intelligence community is by now admitting that the debate sparked by the Snowden revelations is a necessary one. So why do people keep insisting that even though the message is important because it alerts us to wrongs that have been committed, it is still okay for the people who have committed these wrongs to hunt down, smear or incarcerate the messenger?

One of the reasons why we are now in a position to hold our governments accountable is that there are people – Manning, Snowden, Poitras, Greenwald – who have provided us with the information we need to do so. And who continue to do it, refusing to let the debate die down. So before we renounce the “week by week” reporting as a “sensationalized way of “maximiz[ing] attention,” I think we should take a couple of things into account.

Taking responsibility… or not. Crises of conscience.

Interestingly, “[a] review panel created by President Obama to guide reforms to US government surveillance did not discuss any changes to the National Security Agency’s controversial activities at its first meeting”. This is quite momentous because it does raise the question of whether the panel’s “function is to bleed off pressure, without getting to the meaningful reform.”

Given government reactions and behaviours so far, governments are increasingly obliged to follow their promises up with concrete action. Whether or not they do so will tell us more about how much they really welcome debate and reform and how willing they are to put restrictions on their surveillance activities and secrecy. Given that on the review panel apparently now one said that “the bulk surveillance is horrendous and bad for our democracy,” and that “[w]hen it appeared like the meeting would discuss a surveillance issue in a sophisticated way, participants and commissioners suggested it be done in a classified meeting”, I for one remain doubtful that this will happen. (Oh and by the way, that panel includes Cass Sunstein, whose questionable ideas about infiltrating Internet chat groups have previously sparked some concern). Rather, I would argue with Yochai Benkler that “[t]he so-called “outside independent experts” committee which the president has appointed, with insiders’ insiders like Michael Morell and Richard Clarke, will not come close to doing the trick.”

By contrast, the journalists who have access to Snowden’s materials “are not trying to keep it a secret, but piece the puzzle together. That’s a project that is going to take time” because their “intention is to release what’s in the public interest”.

I don’t know about you but to me this sounds like people taking some care with the responsibility that has been handed to them by someone who also has a sense of responsibility – more care than our governments seem to be taking with the responsibility we have given them by electing them.

Regarding responsible leaking and reporting, there has been a lot of discussion about who else had access to the Snowden documents. WikiLeaks have been mentioned, critics of Snowden have implicated the Russian and Chinese governments. Regarding WikiLeaks: “As far as I know he’s not given them to WikiLeaks,” Glenn Greenwald told BuzzFeed. “It was very very important to him that there not be an indiscriminate dumping of these documents so that there be a real public debate about surveillance policy and not just gratuitous disclosures for its own sake. The kind of publication that WikiLeaks has done in the past is not as I understand it what Snowden wants for the documents. He could have gone to WikiLeaks in the first place if he’d wanted that.”

As to the governments of Russia and China, we can only surmise. I agree that it seems unlikely that they would have the most wanted man in the world sitting in their hotels, embassies and airports with a stash of potentially highly valuable documents in his lap and not do anything about it. Yet, Snowden and Greenwald have repeatedly tried to reassure people that these files are too “are highly encrypted” to be easily accessed and that Snowden has put safeguards in place to make sure that information that is damaging to the US cannot be accessed. Given the difficulty the NSA are now having to follow Snowden’s digital trail perhaps he is much more capable than people give him credit for. In a recent Forbes article, Andy Greenberg states that at the beginning of what he calls “the Summer of Snowden” the things that Edward Snowden said and claimed to know may have “seemed like grandstanding”. They certainly did to some. However, three months on, they seem “prophetic”.

It is for each and every one of us to make up their minds about what to believe and who to believe. This is also what Snowden was trying to give us an opportunity for, I think – to make our own decisions. And for me, the evidence points at Snowden and others along with him as people who – after careful deliberation – took a massive risk to inform the world’s public of gross violations – these are once again summarized in Greenberg’s article if you need reminding.

And if a “crisis of conscience” is indeed at the bottom of Snowden’s revelations perhaps we could all do with a crisis of conscience?

After all, “[i]n the end the Obama administration [or any other government] is not afraid of whistleblowers like [Snowden], [Chelsea] Manning or Thomas Drake. [They] are stateless, imprisoned, or powerless. No, the Obama administration is afraid of [us]. It is afraid of an informed, angry public demanding the constitutional government it was promised.”

For now, I choose to believe that what looks like the most straightforward explanation is indeed the truth.

That “[w]hat Edward Snowden has done is an amazingly brave and courageous act of civil disobedience” and that for the embarrassment that this has caused the powers that be, he has been exiled.

Snowden and the people who work with him have chosen to give up their comfortable lives in the interest of something important. Perhaps if any definition of heroism that does not sound quaint or void still exists, it is this.

More importantly though, in this extremely heated and polarized affair, the people around Snowden simply have the better arguments. For that reason, and considering everything I have learned, all the pros and cons that I have read, I choose to continue to believe them. This, to me, is common sense (and if you take issue with my rather broad use of the term, bring it on ;)).

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4 thoughts on “Common sense is not so common. The “Snowden saga” three months on. Part three: It really isn’t that common. Rounding up opinions.

  1. Pingback: NSA news of the week: Snowden speaks while British PM calls for investigation of the Guardian | Notes from Self

  2. Hmm it looks like your blog ate my first comment (it was extremely long) so I
    guess I’ll just sum it up what I submitted and say, I’m thoroughly
    enjoying your blog. I as well am an aspiring blog blogger but
    I’m still new to the whole thing. Do you have any
    tips for novice blog writers? I’d certainly appreciate it.

    • Hello 🙂

      Sorry for taking a while to reply; I have been away. Yes, it seems your first comment didn’t make it through – I never saw it. But thanks; it’s great to know someone enjoys what I write.

      Tips: hm, the only one I can really give you is find something you really want to write about and keep at it. Do it for the fun and joy of writing and little else besides. That will help you keep it regular (make up your mind how often you want to post per week or month or whatever and then don’t let yourself out of it except in special circumstances (like when you are traveling)).

      I was once told to limit the length of posts (hint; mine are still way too long), so I need to work on that. For me it’s mostly an exercise in regularity at the moment and a way to make myself write regularly and I really enjoy it.

      That’s all I have for now 😉

      Thanks again and good luck with your blog!

  3. Pingback: General Election 2015: Dear UK, We’re F***ed | Notes from Self

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