Mark Duggan, a lawful death, but was it just?

Justice (Dike, on the left) and Divine Vengean...

Justice (Dike, on the left) and Divine Vengeance (Nemesis, right) are pursuing the criminal murderer. (Photo credit: Wikipedia)

Mark Duggan was a bad man.[1] Although not a martyr[2], did he deserve to be killed? Does anyone deserve to be killed? To deserve to be killed suggests an outcome of a process. The person has done something whereby death is the appropriate or deserved result. In this case, the outcome was a result of a process by an organisation reflecting the community or public interest. As the organisation, and its officers, acted in the public interest, the question of justice has to be considered. In the case of Mr Duggan, we know he was a criminal. He had convictions for various crimes and the police had intelligence that he had just collected gun from a known criminal associate. The police moved to intercept him and he was killed. The coroner ruled his death was lawful. Was it just?

Is lawful the same as just?

At a basic level, the two are the same for a community. The community lives by laws so the first understanding of justice is the lawful. Our first understanding, though, shows us something higher is at work, because we need to be able to judge the laws for their intent and whether they correspond to what is best for a community. Understanding what is best, rather than what works, is a question for political philosophy. Through political philosophy, we know there has to be a standard higher than legality to judge the laws because there can be bad laws. Even though these laws are lawful, they are dangerous or damaging to the community. For example, a law that allows or enforces slavery is not just.

In any society, three types of justice mix: perfect justice, political justice, and natural justice. Perfect justice or the philosopher’s justice is the abstract standard by which all societies are measured. Like the philosopher, perfect justice informs the second type of justice: political justice. Political justice is the politician’s justice, which is society’s best approximation of perfect justice. A democratically elected government, through judicial interpretation and amendment creates political justice, which is enforced through the legal system. Political justice entails political equality that is expressed in the idea of the rule of law. A government enforces the rule of law equally and from the basis of that equality, a decent society is created that expresses our common good. Within a decent society, individuals can use their reason to discover the extent to which perfect justice informs that process. What is created within a decent society is political justice. Political justice, though, is vulnerable to corruption. When politically legitimate authority degrades and no longer has the respect of its people, then natural justice begins to emerge. Natural justice means a natural inequality follows.

Mark Duggan’s death: Natural Justice or Political Justice?

To answer the question we need to look at three interconnected levels: the tactical, the operational, and the strategic. The three levels taken together provide a better understanding of the case than a focus on a level.

The tactical level: who can second-guess a life or death decision?

At the first, tactical, level, there can be no doubt that the killing was justified and lawful. The officers acted in the public interest and believed they were under threat from Mr Duggan. They believed he had a gun and he would shoot them. We cannot second-guess their tactical decision unless we want to speculate that the officers had no intent to arrest or stop him and their sole intent was to kill him with or without a gun. We cannot honestly entertain such an opinion unless we have clear evidence that this was what was intended.[3] To date there has been no evidence to indicate, nor does the sworn testimony of officers indicate, that he was killed for any other reason than as the result of an intense, sudden interaction with split second decisions between life and death. However, that is only one level. The decision to stop Mr Duggan was part of a larger police operation in which he was under surveillance. Armed response units were prepared to confront him, which means there was intent behind the police decision to confront Mr Duggan. What determined that intent? That question moves us beyond the coroner’s inquest. We move to the second level, the operation level, where concerns about justice begin to emerge

The operational level: does the tactical level always express the public interest?

At the operational level, the tension between political justice, the public interest, and natural justice, the personal interest, begins to emerge. Natural justice refers to a state of justice inferior to political justice because the individual uses his natural right to decide what justice is. Hobbes called a “right of nature” (jus naturale)

“the liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own nature.”

By contrast, political justice is measured by something beyond natural justice. It is based on equality, equality before the law that protects and promotes the common good and allows us to live peacefully. Political justice is not the individual or institutional good because government, through the police, maintains public order and political justice for the benefit of all. By contrast, a criminal has to rely on natural justice because they cannot access political justice. They cannot report crimes against their criminal enterprises to the police. To find “justice”, they rely on their own efforts. In that situation they act in their own interests not the community’s interests. The same thing occurs, though, when the police (or any organisation) act beyond or contrary to the public interest. For the police, and the community, the danger is that the police will act beyond political justice, act with natural justice, when enforcing the law. This danger is coeval with the police’s role in upholding or enforcing political justice.

On the surface, we must accept uncritically that the police have an interest in maintaining public order in Tottenham and they act in the public interest when they deal with those who would disturb the public order. The police have a duty, in the public interest, to contain and confront a gang in its criminal activity.[4] Such an analysis leaves us at the tactical level. We need to go beyond that surface understanding to look at the decisions and the intent behind that tactical level. We need to ask whether the police went beyond a defence of the public order, in the public interest, to acting in their organisational interest or a private interest disguised as the public interest. At the operational level, we have to explore whether the police act on their institutional interests, rather than the public interest, in their approach to the gang and Mr Duggan.

The operational level is where the tactical and the strategic level mix so the public need to know that the motives, intent, and outcomes considered by the police served the public interest. The questions in this section are not idle. They have urgency because of the recent report by The Independent concerning operation Tiberius that claimed that criminal families and gangs had penetrated the Metropolitan police force and the wider criminal justice system. The report, based on the police’s own internal report suggests that corrupt officers have been in the pay or under the influence of these criminals. Even though these are historical claims, the report dates from 2002, they force us to look closely at the operational level.

The questions at the heart of the operational level were not explored in the coroner’s inquest because they were outside the terms of reference. The questions help us understand if the police acted with political justice or natural justice. The evidence to answer them is less accessible to the public, which creates the concerns for the community. Why did the police intend to confront Mr Duggan in this way? What was the police relationship with Mr Duggan? Why did that choose that location for a hard stop?

How the police confronted Mr Duggan required an armed response. They created, with or without intent, a situation where Mr Duggan’s death was an increased possibility. They knew when they planned the operation that Mr Duggan would be armed. The police took a risk because they decided that this was the best choice. They did not intercept him at the gun purchase nor did they intercept him immediately after obtaining the gun. If Mr Duggan was considered a low-level intelligence threat[5], yet he was the subject of a hard stop, what changed to transform him from a relatively minor character to the subject of a hard stop? The intelligence indicated he had obtained a weapon, but the decision to put him under surveillance and to prepare a hard stop occurred before he picked up the weapon. The police explained that Mr Duggan was part of the TMD gang, which they had been targeting for several years. However, it is not clear how Mr Duggan fit into that operation. When and how was it decided to confront him? Was Mr Duggan handled differently by the police than other gang members? Was he targeted differently than the known violent criminals? Was the hard stop a way to send a message to the gang and reinforce the police presence within the context of the wider public order issues in Tottenham? What was the expected impact from this stop on the strategic situation? We cannot answer these questions, but we need them answered to know if the public interest was served at the operational level. These questions take us to the third level where the relationship between the police and the community is decided.

Justice is the ordered relationship between the police and community

Bernard Hogan-Howe recognizes there is a problem in the relationship between the police and the community. However, the issue is wider than the relationship with the black community in London. The issue, he must understand, is wider. The Plebgate affair reveals an underlying problem. The problem is not simply the community do not trust or like the police. Instead, the tension is created by the way the police act and the community respond. It is not one sided as the community acts irrationally in the face of lawful police activity nor is it that the police are simply oppressors. What has been missing from most analysis of the Duggan case is an understanding that connects the tactical decisions to the operational decision and on to the wider community relationship. Too often, these are simply compressed into “police-community relations”. This is not to say that police community relations are unimportant or window dressing. On the contrary, they are central to effective policing as the investigation in to the August 2011 riots demonstrated. Instead, we need to see the policing relationship as part of the wider community relationship as an expression of legitimate political order. Where that larger relationship is disordered in many communities, the political legitimacy of the police and their operational legitimacy is called into question. The community may accept the lawfulness of the tactical level because the police are there to protect them as well, but the justice of the operational leads to concerns about the strategic level.[6] We can see there is a disordered relationship because Mr Duggan’s death, no matter how amplified and exaggerated, would not have set off riots in a community where the police and public have a relationship based on justice.[7]

When political justice fails, people are not being treated equally before the law. For example, if the police act unlawfully with impunity or act criminally, they act beyond the law. A police officer and a police force must be accountable before the law in the same way as an individual is accountable. To the extent that they are not equal before the law, the rule of law is weakened. The inequality makes it harder for the individual to access justice. Without access to justice, the citizen’s relationship with society becomes disordered. When the political society is disordered, or corrupt, then the legitimacy of the public order is in question. In an extremely disordered community, natural justice becomes the main alternative and where a society tolerates communities of that nature, such a society can no longer claim to be a decent society.

To people in communities dominated by natural justice, with a weakened politically legitimate authority, the police start to appear as another gang rather than representing a legal or legitimate political justice. If the police are ineffective, then the gangs take control. If the police are too aggressive, then they can appear to be oppressors rather than upholding justice. At the same time, if the police officers betray their oath to the crown, for example, by taking payments from newspapers, working for criminal families or acting arbitrarily in the community, then they become like gangsters. In those cases, the officers do not act for the public interest or the common good and the community suffers as a result because the relationship with the police can be seen as unequal. The community’s access to justice is based on political inequality. As a result, the disordered relationship allows minor criminality to expand as the community reflects the natural justice they are experiencing with the police and the wider political justice system. In a disordered relationship, a community might protect a murderer from the police instead of upholding the rule of law. They would do this because they fear the gangster more than they love justice or because they dislike the police more than they love justice. An extremely disordered community where politically legitimate authority is weakened by corrupt policing and gangsters dominate the community would be described as a no-go zone.

The decline of political legitimacy and the rise of “natural justice”

We can see natural justice at work when crime families or gangs create “order” in communities that fear them. They do not serve the community; the community serves them. When communities do not believe political justice is not accessible to them or they legitimacy of their political or community institutions, like police, schools and politicians, decline, then gangs and criminal families will fill the justice gap. Such areas have been described as no go areas where the police are a presence in name only. In 2011, a UN report concluded that some areas of the UK had become no-go areas for the police and the rule of law.[8] However, even in face of the London riots of 2011, the police leadership and press denounced the UN report. Then in 2012, Dale Cregan ambushed and killed police officers in a grenade and gun attack.[9] The killings showed “natural justice” at work in that community as a gangster targeted the police. He had been able to elude the police manhunt for days because people in the community shielded him.

If policing is not based on a shared concept of justice that can be discovered by reason, then it is reduced to power. If policing becomes “our gang is bigger than your gang”, a justice gap emerges between the community and the police. The community will see the police as pacifying them rather than working with them to create a shared community of justice. Where the police see themselves upholding the law, the community see them enforcing the idea that might makes right. The community see the police dispense their form of “natural justice” under the guise of political justice. In response, the communities begin to believe that when the police shoot someone they dispense a form of “natural justice”. What the police see as a just operation, a disordered community will see as gangsters killing a gangster. In time, the communities will see the killings of the police as a form of natural justice. To the gangster’s thinking, the police are just rivals for power in the community and a community in disorder will reflect that thinking. Such behaviours reflect a disordered view of the relationship of legitimacy and police presence. Unless that relationship is healed, on both sides, the operational and tactical levels will continue to create tensions within the community. We will have order, but we will not have justice.

Conclusion

We cannot accept on the facts presented that Mr Duggan’s death was just because there are too many unanswered questions at the operational and strategic level. If the government and the public reduce Mr Duggan’s death to a question of legality, it raises questions about whether justice is possible in the UK. The focus on legality avoids the question of justice and it masks the problem for the political order. The political order does not reflect a just relationship between the police and the community. The relationship can only be healed through political reform and police reform, which must be more than a reference to “community relations”. If our focus on policing remains on community relations, we deal with the symptoms of the disordered relationship not its source. To address the justice gap created by the inequality within the political order concerning the access to justice, we need to improve how the community accesses justice and most importantly how it understands justice. When decisions at the tactical and operational level can be demonstrated to be legal and accepted as just, then relationship will begin to heal. Both sides have to work together otherwise, the relationship will remain disordered and the spectre of injustice will haunt the operational and strategic level. Without reform, the focus will remain on responding to riots better than on preventing them through a well ordered community based on a shared understanding of justice.


[2] If were to entertain that Mr Duggan was a martyr we have to accept that his cause was worthy of martyrdom. Is criminality is to be valued more than public order and lawfulness?

[3] The coroner’s inquiry is not the same as a judicial review so its outcomes are limited to the first level. As such, it raises the question of whether it is sufficient to accept its outcome as embodying anything more than a legal ruling on the tactical level, which cannot express a final view regarding the question of whether Mr Duggan’s death was just.

[5] http://www.bbc.co.uk/news/uk-25363828

But Det Ch Insp Foote said he was “very lightly convicted”. Minor offences like cannabis possession and the sale of stolen goods were all he had on his record.Some of the police intelligence on Mark Duggan was graded E, the lowest on the scale the police use to grade accuracy.It was, said the coroner, “certainly a very poor quality indeed” and DCI Foote told the inquest “I had no information on which I could have arrested Mark Duggan.”

[7] For example, there were no riots in Chelsea after lawyer Mark Saunders was shot.

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The journalist as the internet political activist

Originally posted on Media Meditations:

English: The Parisian Life (French: Interior d...

English: The Parisian Life (French: Interior d’un Cafi) painting by Filipino painter and political activist Juan Luna (Photo credit: Wikipedia)

With the internet, a new form of public intellectual has emerged. The new intellectual shares some similarities with the sophists who emerged in 4th century Athens. In that period of intense intellectual, artistic, and political activity, the Sophists were famed for their rhetorical skills as well as their challenge to the conventional beliefs and opinions. Plato held them responsible for Athens’s decline and Socrates’ death, which meant the term, is often used as an insult. However, the original meaning helps us to understand today’s public intellectuals because their role covers journalists, bloggers and this blurs into internet political activists.

These public intellectuals have been described as tech Intellectuals. The term, coined by Harry Farrell, describe internet writers and activists whose work is driven as much by their exposure on the…

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Snowden, Manning and Tsarnaev: is the only difference a pressure cooker?

March on Washington for Jobs and Freedom, Mart...

March on Washington for Jobs and Freedom, Martin Luther King, Jr. and Joachim Prinz pictured, 1963 (Photo credit: Center for Jewish History, NYC)

If we answer this question with a tentative yes, uncover a deeper problem for liberal democracy. Exasperated by politics, the political process, and society’s failure to change the political system, the three men[1] acted in their respective ways to “blow the whistle” on the United States government. Through a deed, a public act, they would alert the public to what they believed were the government’s illegal and immoral acts. Their deeds and their words connect them as each justified his act by claiming to serve a higher good, either the public interest, their conscience, or both. They acted because the government was either criminal, (Tsarnaev) or it was misleading the public (Manning and Snowden).

How they justified their acts helps us to consider whether they should be called whistleblowers and if they engaged in an act of civil disobedience. On the surface, the difference is stark Tsarnaev and his brother were [alleged] killers.** They [are alleged to have] used bombs made from pressure cookers to kill and maim people in revenge for the United State government’s murder of Muslims. Despite their apparent differences their acts share a common theme.[2] Even though only Snowden and Manning appear to fit the definition of whistleblower, I will argue that Tsarnaev, when compared to the others shares an important similarity. In that similarity, though, we find that they are not whistleblowers. What connects them at a deeper level is that they engaged in propaganda by the deed, instead of whistle blowing or civil disobedience. To understand this argument, we need to consider their motives and what they mean for America.

Chelsea Manning: can an individual decide the public is wrong?

Chelsea Manning justified her act as being necessary for telling the American public what was being done in their name. She believed that if the public knew what she knew, then it would change the public debate on the Iraq war because they would either stop or modify the government’s policy. When the mainstream media failed to take an interest, she turned to the Wikileaks Organisation. They published the information about an alleged war crime and the larger amount of documents that revealed details of America’s diplomacy. Her statement to the court set out her motive and intent.

j. I believe that if the general public, especially the American public, had access to the information contained within the CIDNE-I and CIDNE-A tables this could spark a domestic debate on the role of the military and our foreign policy in general as [missed word] as it related to Iraq and Afghanistan. I also believed the detailed analysis of the data over a long period of time by different sectors of society might cause society to reevaluate the need or even the desire to even to engage in counterterrorism and counterinsurgency operations that ignore the complex dynamics of the people living in the effected environment everyday.

The public had to be told because the political process did not reflect what she knew. The democratic process that delegates responsibility through a representative government, from the public to the government and on to its agents such as the military, was flawed. It was flawed because the public could not want the outcomes she saw on the ground. She assumed at the time of disclosure that more information would change the public’s view. The unasked question before disclosure, though, is whether the public wanted those outcomes and chose them with knowledge and intent. After her sentencing, when she accepted that she broke the law she explained the information she disclosed could justify the war, which negates her claim of being a whistle blower. Edward Snowden has a similar approach, in that he wants to inform the public so they can make better choices, which undermines his label as a whistleblower.

Edward Snowden: what would replace comfortable self-preservation?

Edward Snowden has also been described as a whistleblower because he appeared to reveal illegal and immoral acts by the government. Snowden, like Manning, wants the American public to be better informed because he believes that if they have the information, they will make a better choice.[3] They would awaken from their slumber and change the government’s policies. Like Manning, he seems unaware of or indifferent to the political process of representative government as it works through an administrative state. Unlike Manning, though, he has a political goal beyond telling the public. He wants to change American society and change the regime. Despite their similarities, Snowden agenda is more radical.

“But at the same time you have to make a determination about what it is that’s important to you. And if living unfreely but comfortably is something you’re willing to accept, and I think it many of us are it’s the human nature; you can get up everyday, go to work, you can collect your large paycheck for relatively little work against the public interest, and go to sleep at night after watching your shows.”

“But if you realize that that’s the world you helped create and it’s gonna get worse with the next generation and the next generation who extend the capabilities of this sort of architecture of oppression, you realize that you might be willing to accept any risk and it doesn’t matter what the outcome is so long as the public gets to make their own decisions about how that’s applied. [Emphasis added in bold]

Snowden’s statement, near the middle of his interview, at 6:27 of the 12:34 interview, shows he wants to rescue the United States from its slumber of comfortable self-preservation. He seems unaware that the regime is founded to achieve comfortable self-preservation.[4] He wants to change the American regime and, by extension, reform the American public. His call to act is like a sermon, a jeremiad.[5] Like a preacher, he is calling the people back to the path of righteousness. They must reject the false pursuit of comfortable self-preservation because it has culminated in an architecture of oppression. Unless Americans change their ways, a turnkey tyranny through a technologically enabled surveillance programme will be their future. We are never told or shown how the American people are oppressed. We are told to overlook the system’s intent and design and to look only at its potential as a tool of oppression. We must accept that its existence is by default oppressive. What is implied, but unsaid, is that any government programme, by its existence, is a tool of oppression. The census, social security, even the postal system have the potential to be a tool of oppression. We must accept that America is no longer a democracy, with the rule of law, where the government serves the people. Instead America is becoming or has become a technological tyranny where the individual is losing or has lost (Snowden never clarifies) his autonomy.

Snowden, though, faces more unasked questions than Manning. What remains unasked is whether Americans want their comfortable self-preservation. When did the government stop being the people’s protector and become its oppressor. If comfortable self preservation is our ruin, what is Snowden’s alternative? His motive provides an implicit and, an unstated, explicit alternative[6], but does America want them? The explicit alternative is Americans reject the surveillance state and achieve the same safety and security by some other unstated means as if the digital domain will police itself because it is benign. Or that the threats in the digital domain do not require NSA surveillance.

Snowden’s implicit alternative requires a radical change in American politics. It would appear that America must either accept individualist anarchism or the unrestrained pursuit of civic virtue. Either will need the public to forgo their comfortable self-preservation. The whole system, not just the NSA programme, has to be rejected. The system of comfortable self-preservation has created the architecture of oppression. Without a viable an alternative, his criticism, no matter how radical or how widely published and promoted, remains incomplete, incoherent, and ultimately ineffective. We can summarize it as follows: He does not like the surveillance system because it makes him uncomfortable. Anyone who wants to protect individual autonomy will agree with him that the government must change its ways.

Dzhokhar Tsarnaev: whistle blowing by explosive

Tsarnaev had a different motive. Instead of informing the public to make a better choice, or reforming the regime, Tsarnaev had one [alleged] goal; kill Americans in revenge for America’s crimes.  He is not a whistleblower as it is commonly understood. Unlike Snowden and Manning he has not made a public statement that a blogger or Wikileaks have amplified and exploited for their purposes. To the extent that his act and his views are amplified it is not in the Western media markets. Even though, like Manning, he opposed American actions in Iraq, he [is alleged to have] wanted to kill Americans. Even though, like Snowden, he wanted to wake America up to an issue, he did this through violence. However, he is not simply a lone wolf terrorist as some have called him because that reduces him to an operational problem for the security forces. He is, like the others, a harbinger. As an extreme version of Manning and Snowden’s disaffected and technologically enabled autonomous individual response to the liberal democratic state, Tsarnaev is only a difference of degree not kind.

Conclusion: neither civil disobedience nor whistle blowing but harbingers

Ultimately, none of these individuals are whistleblowers nor will their acts lead to a substantive change in America or its policies. If they were to change America they would have had to be true whistleblowers.[7] They would have practiced civil disobedience rather than criminal disobedience through the propaganda of the deed. If they had followed Martin Luther King, a true whistleblower, a true conscience of America, then we could consider them. In his justly famous Letter from a Birmingham Jail, he explained that before any direct action could occur four steps were required. The steps had to be followed to be sure the right action happened for the right reason for the right outcome.

“In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action.”

Neither Manning, nor Snowden, nor Tsarnaev followed these steps. They did not articulate the higher law they served unless we believe it includes the “public interest”, a vague notion of “privacy”, or [alleged] murder in Allah’s name. King, like Socrates, stayed to defend himself before the laws. He invoked the higher law, the natural law, at the heart of the American Declaration of Independence. The natural law is that all men are created equal and deserve equality before the law. His act of civil disobedience, like that of Socrates, demonstrated that the laws were inconsistent with the promise of the founding. King echoed Lincoln in his call to act. Lincoln had had argued that America could not remain half-free and half-slave. King argued that America could not claim to be founded in equality and practice inequality. King came to redeem not to destroy or change the American regime. What Lincoln had argued in the Gettysburg Address was that King was asking of America. They both wanted the people to live up to promise of a regime founded on the proposition that all men are created equal.

Neither Manning, nor Snowden, nor Tsarnaev have invoked a higher law. Manning accepts the document disclosure could justify the war, while Tsarnaev[is alleged to have] wanted to kill Americans. To the extent that Snowden has, he accepts self-preservation as the highest good, just as long as it is not comfortable self-preservation. Yet, for self-preservation to succeed, the state must act to protect the public interest, the reason why we have a government and why the NSA programme expanded after the attack on 11 September 2001. Instead of being whistleblowers, Manning, Snowden and Tsarnaev, represent a deeper problem, a deeper threat, to America and to liberalism, which is the topic for a future blog.

Part two of this blog will published shortly.

**Please note that Dzhohar Tsarnaev has entered a plea of not guilt to all the charges he faces. http://www.theguardian.com/world/2013/jul/10/boston-marathon-explosions-dzhokhar-tsarnaev


[1] At the time of his deeds, Chelsea Manning was Bradley Manning. He was a man. She is now a woman.

[2]  I follow Michael Davis’s work Avoiding the Tragedy of Whistleblowing, Business and Professional Ethics Journal, vol 8, no. 4, pp. found here: http://ethics.csc.ncsu.edu/old/12_00/basics/whistle/rst/avoiding_tragedy.html (last accessed 25 December 2013).

[3] A representational democracy, from an information point of view, is designed to avoid information overload. We elect representatives to make these choices. In turn, they create and administer institutions and agencies to put our indirect choices into force. The whole process has to accord with the constitutional principles so that the public and the representatives can see the legitimacy or illegitimacy of any given choice. In this scenario, the simplest choice for the citizen is whether they want to be safe and to what constraints are they willing to tolerate for that safety.

[4] See for example Leo Strauss, Natural Right and History, p. 236. For an understanding of Locke’s influence on the American founding see generally the following Toward a Republican Synthesis: The Emergence of an Understanding of Republicanism in American Historiography by Robert E. Shalhope The William and Mary Quarterly Third Series, Vol. 29, No. 1 (Jan., 1972), pp. 49-80, The spirit of modern republicanism: the moral vision of the American founders and the philosophy of Locke Thomas L Pangle, Chicago: University of Chicago Press, 1988. The liberal tradition in America; an interpretation of American political thought since the Revolution, Louis Hartz: New York, Harcourt, Brace [1955]

[5] For a discussion of jeremiad in American politics see Errand into the wilderness, Perry Miller Cambridge, Belknap Press of Harvard University Press, 1956 and Sacvan Bercovitch The American jeremiad, Madison: University of Wisconsin Press, 1978.  More generally, see Lawrence Serewicz America at the Brink of Empire, Rusk, Kissinger, and the Vietnam War Baton Rouge: Louisiana University Press, 2006 pp.112-130

[6] I have not included the third alternative that the whole spectacle was simply to have better oversight for two reasons. First, Snowden did not try to go to official channels. Second, it seems strange to think that the only outcome from this public act is Congress will do a better job than it already does given that it was briefed by the Executive about intelligence issues. If better oversight is the outcome of this spectacle, then the regime has to look closely at how it recognises and acts on “bad news” that challenges the executive branch and by extension the government. One wonders whether such “bad news” can be conveyed in any other way than through loudspeakers like a blogger and wikileaks. Is Congress no longer capable of listening for “bad news?” or that the “whistleblower” no longer trusts it to act? Either conclusion raises questions for the viability of American democracy.

[7] I consider Paul Moore an ideal example of a modern whistleblower. He did his duty and reported the risk to HBOS. He acted according to the chain of command. He was fired. Even though he was fired, he maintained his legal duty of confidence. However, when he saw the testimony of the former HBOS CEO he felt compelled to speak out. He did this at great risk and reluctantly only doing it after a period of soul searching. His duty to the truth was paramount and he was willing to face the consequences so that he could bear witness. http://www.ft.com/cms/s/0/2dd0f0de-ab70-11e2-8c63-00144feabdc0.html#axzz2oWJ1G9Qw see also http://www.christianstogether.net/mobile/default.aspx?group_id=75042&article_id=169798, http://www.telegraph.co.uk/finance/newsbysector/banksandfinance/4592025/HBOS-whistleblower-Paul-Moore-breaks-silence-to-condemn-Crosby.html

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My response to the NSA public consultation

Official portrait of NSA director Keith B. Ale...

Official portrait of NSA director Keith B. Alexander. (Photo credit: NSA via Wikimedia Commons) http://commons.wikimedia.org/wiki/file:keith_B._Alexander_official_portrait.jpg

 

Background note: In response to the Snowden leaks about the National Security Agency (NSA) surveillance program, a review group was created on August 12, 2013. President Obama directed the establishment of a Review Group on Intelligence and Communications Technologies. Their mission was to review and provide recommendations on

“how in light of advancements in communications technologies, the United States can employ its technical collection capabilities in a manner that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure.”

On September 4, 2013 the Review Group solicited comments from the public to inform its deliberations, and included in that solicitation its Privacy and Comment Policy.  Between September 4, 2013 and October 4, 2013, the Review Group received close to 250 comments.

The report based on the public consultation and the research by the review was published on 12 December 2013.  A copy of the report can be found at this link. Liberty and Security in a Changing World.

This post is a copy of my contribution.

The Review Group has a difficult, though honourable, task. You have to explain why a legitimate government can use what can be perceived as illegitimate methods to secure a government’s ultimate goal: to protect the political good. As Aristotle explained in the Politics, we come together for life (security) we stay together for the good life. If we start with that understanding, we have a context to understand the role of the government and the relationship between the citizen and the government.

Before we begin, I want to caution the group against a simple view that the issue can be solved by finding a “balance” between security and privacy, technology and politics, and foreign policy and domestic policy.  If you take that view, you will continue to think technologically rather than constitutionally or politically. You will not be able to address the problem by technological means. If you search for a “balance”, you will need to “quantify” the balance. Soon, you will have political scientists and economists who will propose equations, such as expected utility analysis, that will explain the “right amount of privacy” to “balance” against the “right amount of “security”. Such thinking is dangerously flawed and must be rejected. If you embrace it, you have rejected the core constitutional principles of the United States of America. The country is founded upon a right judgement of political principles not a “balance” of probabilities or a “trade-off” between principles. The search for a “balance” will only avoid the political responsibility of making a choice, and the longer it is avoided the greater the cost for the correct choice. Although some may view the issue as a political balance or compromise, there are fundamental rights and principles upon which the country is founded that offer no compromise. America’s founding in 1776 and the re-founding under Lincoln in 1863 showed that we have inalienable rights that cannot be “balanced” or compromised. We cannot live half slave and half free nor can we accept a compromised view of what it means to be human. There are no trade-offs on matters of principle.  Let us leave aside these theoretical discussions and turn to the main issues.

A political question not a technological question.

How shall you proceed in your task? As I mentioned earlier, we must reject the view that the surveillance is a technological problem with a technological solution. What has been a constant theme through the debate over the NSA revelations is that a technological solution (encryption) can be found for what is perceived as a technological problem (surveillance). The problem, at its source, is not technological; it is political. The question you need to answer is a political philosophical one because it addresses how we are to live, why we are to live that way, and whether that I the best way to live. We must not get lost in a definition or debate about what constitutes “surveillance” or what constitutes “privacy”. The issue is not about the privacy or what it means.  We must decide fundamental questions that shape any notion of privacy. We need to understand why we have a government, its role and the role of the citizen in a representational democracy. What are the limits a government beyond which it cannot go to secure and enlarge the rights of its citizens? When we consider these questions, we realize that surveillance is a political issue never a technological one. When people propose technology to stop or constrain surveillance, they simply remain within the same technological framework. As a result, they cannot solve the surveillance problem. To put it crudely, technology defeats technology, which means any technological solution will be overcome by the next technological innovation.

What dominates the arguments about surveillance, explicitly or implicitly, is that we cannot trust the government. Therein, the Review Group has a larger task before it that it cannot resolve alone. The NSA has a particularly important task because the reasons for its mission and how they support democracy has not been told effectively or convincingly.  By that, I do not mean we need more public relations or a better media strategy or even better relationship with the media.  Instead, it is a about educating the people who work at the NSA, as a start, as to the NSA’s mission and why the work is being done. We must remember that Edward Snowden came from within the organisation and from within the United States. Both of these points should be a sober reminder that the regime has work to do in educating its citizens towards the fundamental principles of its mission. To develop trust, we need the government and the NSA to explain what they are doing, but not simply how they are doing it, but rather why they are doing it. If this is left to a simple response of “National Security” then that simply begs the question. How does the programme contribute national security? How does the programme protect what is in most need of being protected?

We need to begin with the question of why we need a government

The issue demonstrates why we have a representational democracy. We elect people to decide why we need surveillance and set up oversight mechanisms and procedures for the agencies that engage in surveillance. In that regard, the rule of law is applied.  The people and the agencies are bound to act within the law. The problem is that politics is infused with a technological vision. The technological view of politics means that we no longer understand what man is nor do we understand what is intrinsically worth defending about man. Instead, there seems to be a focus on technology, and the technology of privacy, as if by achieving “privacy” through a technological solution we would determine or restore a political relationship between the individual and the state. We need to be reminded why we need and want a government to use surveillance. The government chose to use surveillance. The men and women we elected acted on the belief that technological surveillance serves the common good. Surveillance only becomes dangerous when the government refuses to obey the laws upon which it is founded to protect the individual. The state loses its political legitimacy when surveillance no longer serves the common good. In that regard, the state’s illegitimacy does not rest upon its technological choices, but upon its political choices.

It is not a question of Law

The problem of surveillance is not one that can be “solved” by a law. The legal framework is required but surveillance exists because of a deeper political issue. It is not a question of be resolved within a legal framework but it is not going to be decided on how a law should be interpreted or applied. As the issue relates to national security, it transcends domestic and international divide between politics within the regime and lawlessness outside the state. The United States faces threats that exist outside its constitutional capacity to resolve because they require the government to act extra-constitutionally to protect the constitution. To put it directly, the Constitution is not a suicide pact.  The regime can do whatever it takes, in extreme situations, to defend itself.  The whole principle of nuclear deterrence is based on that principle. These threats are rare, but they are real. Extremists who wish to use violence to thwart or overthrow American interests both domestic and foreign do not fit a neat constitutional category. The response to these threats cannot be by police or law enforcement because it transcends the domestic political sphere. As they exist beyond the borders and the pose a catastrophic threat to the state, they require a state of war to deal with them. Yet, who would the United States declare war against to make it “legal”? The public law 107-40 (Authorisation to use Military Force) tries to bridge this ambiguity. At one level, the law has succeeded because so long as this law is in effect, the United States government can take all measures necessary to deal with the threat. Yet at a deeper level, it failed to resolve the constitutional ambiguity of how a democratic regime wages war without being politically at war? Even without that law, the United States, as a regime, has the natural right to self-defence. Yet, how do we resolve democratically what is a threat which requires the government to be granted the powers it has been under AUMF. In other words, what are the limits to a government’s right to defend itself. What we have is a political question that dominates your work. You cannot address the question of surveillance without a response to this fundamental question.

It is about bureaucracy but not as we understand it. Bureaucracy is the operational part of the issue at least concerning unauthorized disclosure, which also relates to how best to use the technology. The NSA is large bureaucracy with a vast array of tools that it can use to for its mission. However, the people who use those tools and the purposes to which they serve and how its operations are controlled fit within a bureaucratic framework. A bureaucracy is built on its culture. What is the culture that the NSA inculcates? How is it assessed? Is it open, with a critical upwards communication? Unauthorised disclosures and the improper use of the technology are not going to be remedied by the law. When people do those things, they know they are breaking the law. They do it because they believe they are right. They believe they are right because they are not convinced that the NSA’s or the government are acting appropriately.

Changing the Intelligence Community’s dysfunctional culture

The issue is more than a dysfunctional bureaucracy even though we have plenty of evidence of dysfunctionality. What the NSA and other intelligence agencies suffer from is secrecy meets blame avoidance. The description comes from a variation on Christopher Hood’s excellent work What happens when transparency meets blame avoidance? We can see this problem clearly in the work by Dr. Nolan on information sharing in the National Counterterrorism Center. Her dissertation best express the problem in the intelligence community and explains many of the operational problems associated with the surveillance programme. What she reports is a culture in disarray, no clear management, officers suffering information overload and they have not clear understanding of how it fits together. The Review Group should be concerned by the stories within that dissertation. The Valet story shows that the NCTC has no appropriate induction programme and no business could operate with such a disregard for how staff are managed. The problem within the intelligence community is not its size or its technology; it is the culture.  The solution is not to make the intelligence community smaller. The solution is to change its culture.  The Review Group faces another challenge that will require it to address fundamental political choices because the intelligence community reflects a wider political culture of neglect and deference that undermines accountability within the intelligence community.   To change an organisation’s culture you have to change the way it does business. You have to change the way people manage and the way people are managed. In particular a robust culture has strong critical upwards communication systems where junior employees can tell senior employees what is not working and why without fear of disapproval. In such a culture, the organisation learns from its mistakes to prevent them, not just fix them. What this requires as well is a management structure that creates and sustains a robust internal communication system. To create a robust culture, the intelligence community must invest in and train its middle managers who have to translate an agency’s strategic vision into a practical reality without creating unintended outcomes. The danger is that without the strong internal communication system, middle managers will do their best to translate their understanding of the strategic vision against practical demands of the day-to-day work, which will create the unintended outcomes.

It is not about how we classify or declassify documents When the government classifies or declassifies a document, it follows a bureaucratic procedure. The procedure is not the problem. The procedure is only a symptom of the problem. The problem is the failure of political judgement because it is not guided by the political good. Instead, it is guided by precedents and compliance with established criteria. In addition, the over-classification of documents and the failure to declassify reflect and reveal a blame avoidance culture. No one wants to declassify a document that will create a scandal or lead to deaths.  The bureaucrats who make the decisions are not trained or allowed to use their judgement because they are not trained or educated as to the political good the decision to classify or declassify is to serve.  Instead, they become path dependent. They follow previous decisions. They rely upon the past rather than attempt to decide what the good is that the decision to classify or declassify serves. Is that decision the best way to serve that good as evaluated against the objective criteria used to decide the issue?  If the process is to be reformed, it will require a change in the criteria to classify or declassify. However, that will only work if there is a change in the political culture that sets the framework for any decision. Although the decision has become a bureaucratic because bureaucrats have decided how they will interpret the existing criteria and how they will apply it, it is still a political decision. What reform has to address is the political decision that initiates the process.

The issue is more than bureaucratic culture or organisational culture, it is about the country.

The Review Group must offer more than solutions to technological issues, or operational hurdles, or recalcitrant organisational and bureaucratic cultures. What the review group must do is address the wider government culture and how it has come to embrace surveillance to secure the ends for which it was constituted. What the Review Group must do is discuss the relationship between the government and the people. The relationship explains the surveillance issue because surveillance is justified by the constitutional requirements of the Public Law 107-40 (September 18, 2001); 115 Stat. 224 also known as the Authorisation of Military Force (AUMF). The AUMF has changed the country. Since that decision, the country and the government have become increasingly militarized and power centralized to the executive branch at the expense of the judiciary and the legislative branches. The AUMF has shaped and continues to shape the citizen’s relationship to the government. The surveillance issue only reflects the constitutional and political ambiguity created by the AUMF. Until that law is repealed, the government remains on war footing, which means that its’ constitutional and legal relationship with its citizens is strained by conflicting demands.

What is to the nature of our political regime? Empire or a republic?

We confront the fundamental political issue that decides the surveillance question. If America is not at war, why does it have the massive security infrastructure? If America is at war, what is the goal, what is the purpose, what is the strategy for victory, which will determine how relate military means to the political ends?  What we find is that neither can be answered and both are true. America faces the problem that cannot be balanced and cannot be reduced to a trade-off. America cannot be half-free and half-slave. America cannot be at war abroad and at peace at home. The surveillance shows that the logic that dictates the government’s foreign policy behaviour has infused the domestic political arena. The use of drones, surveillance, and the militarisation of the police are a consequence of the constitutional political ambiguity created by AUFM.  We face the danger that the republic, founded upon limited government, is in danger of collapse under the demand, created by the threat of terrorist attack, of imperial safety imperative. The demand for safety is open-ended and knows no limit. We must return to the republican reality that to be free is to be insecure and accept a limit to the government’s ability to enlarge and protect our rights. Yet, the Review Group will have to reconcile that insight to the reality that the American government and its bureaucracy are created and maintained to delivery a Lockean liberalism goal of comfortable self-preservation as set out by the founders.[1]   In the end, the Review Group must answer *the* political question: What is to be the nature of our political regime?


[1] I discuss this problem in detail in my book America at the Brink of Empire. In that book, I looked at the Vietnam War as it presented a similar challenge because it was an undeclared war that created political ambiguity over the nature of the regime. http://lsupress.org/books/detail/america-at-the-brink-of-empire/
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Surveillance, Safety and the Rule of Law: Questions and Answers

U.S. Ambassador Hans Klemm, Coordinating Direc...

U.S. Ambassador Hans Klemm, Coordinating Director of Rule of Law and Law Enforcement, visits and Kunar Governor Haji Sayed Fazlullah Wahidi walk through Asadabad, Kunar Province, Afghanistan, on Monday, May 9, 2011. (Photo credit: Wikipedia)

We have heard many stories about the surveillance state and its power over the individual. We have heard that the United States has abused its position and its power to its advantage. Many people are outraged at what they believe is illegal behaviour. They believe that the surveillance does not comply with the rule of law, which in turn threatens our safety. Our safety, though, is now bound up with the surveillance. If the surveillance threatens us rather than protects us because it does not comply with the rule of law, then what can we do? Is it a question of the rule of law? Or does the exception that requires surveillance exist outside a legal framework? To the extent that surveillance extends the rule of law, it appears to protect us. However, how do we protect ourselves when surveillance has to go beyond the rule of law?

I explore these concerns with a series of questions. I offer these to clarify some of the issues around the way in which the surveillance, safety and the rule of law interact.

1. Do we want to have the rule of law?
Yes. It protects us and ensures stability needed for prosperity.

2. Do we want the state strong enough to uphold the rule of law?
Yes. If the state cannot accept the rule of law or enforce it, then all other benefits of a decent society are in jeopardy.

3. Do we accept the state may be required to undertake surveillance to uphold the rule of law?
Yes.

4. Is the state responsible for justice, which the rule of law expresses?
Yes.

5. Does the surveillance state cover the President of the United States?
Yes.

6. If the President of the United States is not exempt from the surveillance, should anyone be exempt from it?
No.

7. If surveillance is necessary for the rule of law to flourish, should it be restrained?
No.

8. Have individuals within the various bureaucracies used the bureaucracy for their personal interests contrary to the law?
9. Yes.

10. Have they been punished when caught by the programmes for tracking such usage?
11. Yes.

12. Are there people hack into other people’s systems and use surveillance against people privately outside the rule of law?
Yes.

13. Do you want the rule of law to apply to all no matter how technologically sophisticated and powerful they are?
14. Yes.

15. Do you want to be kept safe?
Yes.

16. Do you want the state to keep you safe?
Yes.

17. Do you as a citizen accept some constraints (such as ID cards, security checkpoints, and police forces) so that public order and public safety can be maintained?
Yes.

18. Do you accept that there are people who will harm you either directly hacker/mugger or indirectly by intent or indirectly terrorists through criminality?
Yes

19. Do you want the state to administer justice if you cannot defend yourself?
Yes.

20. Even after you die?
Yes.

21. Do you accept that the surveillance state can extend the rule of law by being able to deal with those who seek to live outside the laws?
Yes.

22. Do you accept that in a representative democracy we elect people to administer and oversee the laws?
Yes.

23. Do we elect those people to determine the level of oversight necessary for all government programmes?
Yes

24. If there are threats outside the law, must the state be able to act outside the law?
Yes.

When we look at the threats a state faces and what it must do to keep its citizens safe we see a vast technological challenge. The state has vast resources but it is unable to protect all people all the time from all threats. To protect the public it has to prioritize its threats and the way it responds to those threats. The surveillance by the NSA is focuses on high level and externally driven threats that state and local law enforcement cannot handle.

If a government could not keep its citizens safe, it would lose its legitimacy. We see this in Latvia where the government fell because the building collapse showed the government was incapable of protecting its citizens. They had lost confidence in the government as a result. An important part of the social contract could not be met and this would create a problem of legitimacy. If the government is no longer legitimate, then the rule of law, which supports that legitimacy and expresses it, comes into question. If the rule of law cannot be guaranteed because the law cannot be defended or enforced, we face a situation where order breaks down and anarchy ensues. As long as the state follows the rule of law and the rule of law is respected, the people are safe from the government. If the people are not able or are unwilling to manage the laws that rule them, then is it the government’s fault if they find that they are dissatisfied with their own failure to monitor the laws? The laws are what shape a country. As the United States is a nation of laws to change it you must change the laws.

 

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Why should the philosopher talk to the political man and why should the political man listen?

The Death of Socrates

The Death of Socrates (Photo credit: Wikipedia)

Famously, Plato solved this problem in the Republic by inventing the idea of the philosopher-king. The two roles, political and philosophical, were combined. His solution, though, showed the deeper problem that a philosopher, like Socrates, poses for any city. If a philosopher poses a problem for the city, he then poses it for the political man. The philosopher embodies the pure individual who does not need the city except in a basic or physical sense. The philosopher can think for himself and he does not need the city or political society to give him his opinions. The philosopher pursues excellence and virtue which are not always the political man’s highest ambition. The philosopher pursues what is true by nature. As someone who pursues wisdom and not the city’s political good, he presents a fundamental or existential challenge to the city. The city has its opinions and it does not want them challenged. His work, his existence, may indicate the city is flawed because its cherished beliefs are flawed illusions to the extent that they lack what the philosopher seeks. In other words, the city gives an opinion while the philosopher seeks knowledge and wisdom and questions the city’s opinions.
The political man already knows what to do?
The philosopher has no need for political men or for their conversation. He may partake in politics to protect philosophy, but he has no desire to be involved in political events or groups. Plato says that the political life held no interest because the philosopher is interested in the eternal things. They are things worth understanding. Political fame or success is ephemeral and un-rewarding when compared to the mysteries of philosophical life. Political life pales in comparison. By contrast, the political man has no need of the philosopher because he knows what is needed. His political group, his city, tells him what he needs to know and do. His political life is clearly set out by the limits of the city and what he believes to be best for the city simply. Any time the politician spends to listen to a philosopher, who asks questions about whether the city’s way is the best way to live or work, distracts at best or undermines at worst. A politician will not want to listen to the philosopher.
Philosophy or politics is that a choice in a democracy?
Once we become aware of this dilemma we have to ask ourselves are we political or are we philosophical? Even that question, though presupposes a philosophical approach. A political man will never ask himself if he is philosophical. If philosophy supports the political, through political philosophy, it takes on a different role. However, we remain uncertain whether that is the best way to live. If a philosopher recognizes the dangers and does enough to protect him he may leave the political realm open to decay. The philosopher and the political man may, out of necessity, talk because the city cannot defend itself philosophically. The question then is what is that necessity? Who identifies it first, the philosopher or the political man? If the necessity is a philosophical “threat” can the philosopher convince the political man to change the political regime? Will the political man simply be unable to accept the philosophical advice because it is not political, or rather because it is too political because it recommends something that runs counter to what the political man believes?
Will we have the happy coincidence of a philosopher and a statesman?
In a constitutional democracy, the answer seems to be the constitution will decide. The laws act as a substitute for the philosopher king. They express reason spoken politically. However, the question is only delayed. A constitution cannot be written to address the exception. A constitution cannot defend itself from threats that exist beyond it. When that occurs and the philosopher recognises the solution, which may require the regime to change itself, will a statesman be found to listen? Is democracy’s fate now left in chance encounter of a statesman and a philosopher? Perhaps what we have seen is democracy’s greatest success. The system has worked so well that it requires neither philosophers or statesmen. If there are philosophers who remain who can identify the political and can provide a political philosophical answer, what can a statesman do should one be available to implement the answer?

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Who is pimping Miley Cyrus’s talent?

English: Billy Ray Cyrus and his daughter Mile...

English: Billy Ray Cyrus and his daughter Miley Cyrus perform at the “Kids Inaugural: We Are the Future” concert at the Verizon Center in downtown Washington, D.C., Jan. 19, 2009. (Photo credit: Wikipedia)

Miley Cyrus’s “talent” display compel us to ask; “Who profits from what she “sells?” She is the one on the stage so she believes she is in charge, but who benefits the most from her “work”? All artists display their talent?[1] through their performance. To understand who profits the most we need to understand what talent was displayed. She has shown us her nubile body. Her dance routine suggested her physical capability. In turn, they both remind us of her potent sexual availability. Like Mr. Jagger or Mr. Presley who used sexually suggestive moves to display male sexual energy, Ms Cyrus’s display reminds us of the power Eros. An alternative view is that her display was a rite of passage into celebrity adulthood.

As a passage into celebrity adulthood, Ms Cyrus’ display could be considered a PG-13 a celebrity sex tape. The sex tape has become a rite of passage to achieve celebrity status. It is intended strategy to start a celebrity career (Kim Kardashian is the exception that proves the appeal) or resurrect one. What the participant often has is no alternative because they lack a demonstrable talent beyond their “talent” (Farrah Abraham). The overt sexually explicit display appears to be a depressingly necessary method that women, rather than men, use to inform the world that their “talent” is now available.[2] The sex tape or its equivalent becomes a sexual debutant ball. In less than 60 years, the entertainment industry’s rite of passage has gone from Marilyn Monroe’s Playboy pictorial to hard-core pornographic video. Such a change suggests that our appetites have coarsened to such a degree that only sexually explicit public displays can attract our attention.

The performance reminds us that at its core, the entertainment industry is a flesh trade. The industry sells flesh on the stage and screen, but talent, always in demand, is rarely rewarded. Flesh and not voice or performance becomes the currency because the visual image dominates the public appetites and the entertainment industry caters to it accordingly. The industry is at pains to display an acceptable image, but its public face only confirms saying that hypocrisy is the homage that vice has to pay to virtue. The acceptable face only hides the direct continuum to “adult entertainment industry” (the porn industry) that connects implicitly to the professional services such as escorts or party services. At its most extreme, the flesh trade includes prostitution and sex trafficking, which represent the end point. One finds that the trajectory never goes from the lowest point, prostitution, to the pinnacle, Hollywood stardom. Instead, the trajectory of the flesh trade is towards greater exploitation to satisfy the public’s appetite.[3] Against this background, we can see why Ms O’Connor warned Ms Cyrus against her decision to focus on her “talent”. Once whetted, the public’s appetite requires increasingly extreme displays to attract the same or increased attention. The only way to resist such a trajectory is for a fully clothed Ms. Cyrus to display her true talent, but then she would be forced to confront the unspoken fear-her talent is not worthy of such attention. Is her greatest talent is her ability to display her “talent”?

In time, Ms. Cyrus may come to realize her image has trapped her in the same way that porn actors are trapped by their image. They cannot escape the industry because they lack the talent to earn the same money outside the industry. If her fans expect to be entertained in this way, and perhaps we are entertained because her “twerking” entertains even as it titillates, she has become trapped. However, what remains though is “Who profits?” Is it her father? He was quick to say he loved her unconditionally. Is it her fiancé? He soon had second thoughts about the engagement. Who could compete with the attention provided by such exposure. Is it Ms. Cyrus who profits? She has certainly gained a lot of publicity. Publicity, even bad publicity is still publicity, is the oxygen of celebrity. The event and later displays have certainly publicized her “talent” but we do not know who has profited the most.

The question has an obvious if unacceptable answer. We, the audience, profit directly from her display. We consume this “entertainment” and demand more. The public always wants to cast itself as a benign consumer but we are in control and we want our appetite to be satisfied. Our appetites have turned the human person into a commodity. We, the audience profit from Ms Cyrus’s “talent” and we should look at ourselves before we condemn her. She has no alternative but to produce what the market demands. We have become the entertainment industry’s pimps. We are pimping Miley Cyrus’s talent.


[1] The post is based on the exchange between Sinead O’Connor and Miley Cyrus over Ms Cyrus’ performance at the American Music Awards Ceremony. Ms. O’Connor wrote and open letter to Ms Cyrus and a second and third letter on her Facebook page she warned, amongst other things, that the music industry was “pimping her and her talent.” The site for the second letter perhaps explains the issue without a conscious thought with the irony. Ms O’Connor was concerned with the people Ms. Cyrus had around her. when she warned Miley against surrounding herself with vampires and

[2] We have to be note that artists have engaged in similar practices albeit on lesser stages and to relatively smaller audience. One only need to consider videos by Nicky Minaj, Rhianna and Jesse J that use similar techniques to draw attention to their “talent”. Is this the price of fame or celebrity stardom? If so, is it a price worth paying? It would appear the public believe it is a price worth paying.  I wonder if Edith Piaf would have to publish a sex tape or a music video to draw attention to her talent. A further question to research is why the sex tapes are based on the woman as the star even if the male who participates is well known. For example, the sex tape of Pamela Anderson, then Lee, is associated more with her than with Tommy Lee. For an interesting unintentionally ironic lament about the pornification of pop and everything see Rashid Jones’ article in Glamour.

[3] The flesh trade will always remain. What is different now is how mainstream and public it has become. One hesitates to say that it has become acceptable. At the same time, we have to consider that as our politics become immoderate our entertainments reflect that change.  Perhaps the relationship is that as our entertainments have changed so have our politics.

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The problem of surveillance in a democratic society

 

English: POLICAM surveillance camera and enclo...

English: POLICAM surveillance camera and enclosure. (Photo credit: Wikipedia)

What has been a constant theme through the debate is that there is a technological solution (encryption) to what is perceived as a technological problem (surveillance). The problem, at its source, is not technological it is political. Why we have surveillance is a political question. How surveillance works and how best to avoid surveillance are technological questions. The debate has focused heavily on the technological issues. I would suggest that it has been dominated by a technological view of the issue, which has led to the confusion and the concern. The great shibboleth that has been created is the belief that the state is omniscient and all seeing. Yet, the truth is the opposite. The state is nearly blind and its competency is only manifested when it reacts to a problem, which is fixed and determined, such as a disaster or an attack. When focused it can act with amazing speed, effectiveness and efficiency, yet without that focus it is nearly blind and indolent as it is busy with daily work of the government. The government has no interest in the individual citizen unless it has been given a reason to be interested. This is why governments spend most of their time and resources on specific problem areas or the everyday work to maintain the rules that allow political society to flourish.  As long as the system functions, the government remains passive and pre-occupied in its maintenance role.

Is everything a government does control and surveillance?

What the debate seems to avoid is the political reason for surveillance. At one level, it appears that any activity by a government is surveillance and control. Yet, any surveillance that is directed at a particular person or group of persons is done with intent.  The surveillance follows some pre-determined criteria.  The criteria are political and set, either directly or indirectly, by the government. The government gives the reason for surveillance. In turn, we need to consider what is the government’s role or purpose. Surveillance serves the government. We then can consider the difference between a legitimate and an illegitimate government use of surveillance. Yet, that also requires us to understand the relationship of the citizen to a government in a representational democracy. These questions help us to see that surveillance is a political question that is being posed as technological question.

Technology to avoid democratic political accountability?

If we use technology to deal with surveillance, we stay within a technological and not a political framework. As a result, we cannot solve the political problem that surveillance poses. What is the best way for the state to keep us safe?  Technology does not change human nature. We may believe that technology allows us to ignore nature, and human nature in particular, but that only confuses a second order issue (what is the role of technology) with a primary order question (what is the best way to live). In other words, technology only assumes that the political decisions are either already settled or can be avoided. In either case, when we rely on technology to solve a political problem, we avoid democratic debate and decisions.

Why do we need governments?

In the United States, one can view the debate about surveillance and encryption as similar the discussion over the second Amendment right to bear arms. When the government is not around, Americans want guns to vindicate their right to self-preservation. Yet, when someone else has more guns they than do, they also want the government to have enough guns to protect them and those who do not have guns. Americans want a rule by the majority that protects the rights of minority because on any given issue a member of the majority may find themselves in the minority. However, the issue though is not guns or surveillance.

Why do we need surveillance?

. We need them to promote and protect our rights, which are the basis of our freedom because human nature is flawed. A government promises its citizens that it will protect them. Surveillance is part of that promise to protect. If the surveillance does not serve that end, it becomes illegitimate. Human nature’s flaws mean that there are bad people in the world who want to do bad things. At the point where their freedoms can hurt us, we need guns or governments to help us protect our rights, which are the basis for our freedom. Those people who will not be persuaded to respect our rights, or the common good, have to be coerced to respect them. There is no other alternative.

Without surveillance, can we trust a government to keep us safe?

If governments cannot use surveillance, how will they keep their promise to protect their citizens? Is it is wrong for a democratically elected government with a democratic mandate to protect its citizens through surveillance? The public want non-democratic organisations, like Facebook, to use surveillance to monitor the content of their platforms. If we claim that organisations have a contract with the client, what about the citizen’s constitutional contract with their government? A citizen consents to that contract when they decide to live within their country unless they are not free to emigrate.[1] What we find is that the argument is that we cannot trust our government. In the United States, this is problematic because as Lincoln reminded us, America’s government is of the people, by the people and for the people. Often the arguments develop into a plea for direct democracy to avoid democratic due process as exercised through representational politics. The argument appears to be that if we just get rid of the powerful and the politicians we can get better and more democratic decisions because technology allows us to all follow our self-interest and find the ideal decision on any issue. Yet, that proposed solution only reminds us why we have a representational democracy.

Why do we elect governments?

We have a representational democracy for these cases because they want someone to represent their interests. They may not have the time or the skill to do it themselves, so we elect someone to represent our interests. The internet gives us the illusion that we can be authentic individuals and manage this representational task by ourselves. We will represent ourselves on all matters large and small. Yet, the representational government emerged to avoid those situations where a person wanted to be a judge in their own case. What seems to be common this issue is an almost utopian belief that the web will allow us to be judges in our own cases.  We will decide what laws we will obey. We want to be able to opt out as and when we like rather than understand that, we have consented to a representational government to express our ability at self-government. We can agree to a contract and fulfil it. If we cannot do as we agreed to do, then how can, we say we can govern ourselves.

The choice for surveillance is political it is democratic not technological.

Our political regimes have chosen to use surveillance. The choice was a political one, not a technological one. The men and women we elected act on the belief that technological surveillance serves the common good. If surveillance does not serve this end, it becomes untenable. However, the state’s political legitimacy is not a function of technology. Technology does not

decide whether the laws are executive faithfully. The political regime decides if the laws are to be executed, which political questions not technological questions are. If we want to “stop” NSA surveillance, we will need to convince the government and the public that elected them that it needs to stop. To do otherwise is to avoid the political decision in favour of technology. In that sense, encryption only avoids that political debate and in effect abandons democracy. Either we can make our political system robust or we can withdraw from it and pursue an anti-democratic technological privacy. The democratic choice is ours.

 


[1] If you are not free to emigrate, the government does not allow its citizens to leave, then surveillance will be the least of their worries because the relationship with the government is already problematic.

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Why encryption threatens democracy

English: Privacy Fence custom built by Nice Fence.

English: Privacy Fence custom built by Nice Fence. (Photo credit: Wikipedia)

The basic encryption is like a lock for the front door. It will stop the burglar, which is its main purpose. Super encryption is only needed to stop an advanced burglar not the government. When people talk about advanced encryption to deter the government, it is the equivalent of buying a firearm rather than a lock to secure a house.  If you wanted to protect your home from the most powerful burglar, in this case an illegitimate government, you would need the equivalent of nuclear weapons and a private army to secure your property. Therein we see encryption’s political problem.

Those who want to “stop” the government from being able to break encryption would separate a citizen’s digital security from their physical security. They want the citizen to have greater digital security than physical security and that would destabilize the state. Moreover, it would undermine the political obligation that binds a democracy together. The attempt to treat the physical and digital realms differently reflects an incomplete understanding of the natural right foundation of our political rights and our person. Our “digital rights” cannot exist without a natural rights foundation otherwise they are simply a positive right created by the state.  Such a view leads to incoherence; the state is to give us digital rights but we stop it from having the power to enforce them. Or, it leads to intellectual anarchy; we have digital rights that have no foundation in our natural person or in the state, only in our digital person, which does not exist.  Neither position can sustain a liberal democracy.

To see this problem clearly, consider that we are not allowed to protect our person to the point where the government cannot overcome us. We are not allowed thermonuclear warheads and private armies. Were someone to have that power they would be a law unto themselves. In a democracy, such people would cause it to begin a collapse into anarchy or tyranny. Instead, a democracy is based on political equality before the law and the law is made by a government based on the consent of the people. People consent to a government and within that consent they accept limits to their natural rights in return for limited government. They understand that their freedom is based upon the rule of law. If encryption defeats the government, then the rule of law is under threat, and in turn democracy is threatened.

The dichotomy regarding security in the digital domain is reflected in the confused public opinion on the relationship between political obligation and political legitimacy. The public accept the government’s ability to ensure their physical security and government their physical lives. They are happy, that is they have consent to, to live under a government shapes their lives directly. For example, the government as the public’s agent decides or regulates who they can or cannot marry, who they can or cannot have intimate relationships with, as well as what they can or cannot ingest, or what they can or cannot do in their spare time, and whether they can or cannot obtain a firearm. They also consent to it defending them and the constitution from all threats foreign and domestic. Yet, the same government appears to become illegitimate when it acts in the same way in the digital domain. The government has not taken on any powers in the digital realm which it does not have or use in the physical ream. For some reason we are being encouraged through public opinion that the digital domain is different. The dichotomy reflects how far we have been removed from the natural right philosophy that underpins liberal democracy. We need to look at the growth of the modern state to understand why the government has to extend into the digital domain.

The state’s digital dominance reflects its dominance in the physical realm.

The GCHQ/NSA furore reveals the historical process that has been accelerating for the last 500 years. It took the modern state that long, from its birth, to become the dominant actor in the domestic realm. At its birth, the state was not stronger than some individuals or organisations within its domain. Over time, through political changes and bloodshed, those individuals and organisations were brought within the state’s power. The rule of law applied to all and political equality became possible. Even the Queen and the President are subject to the law.[1] For the law to rule, we need a government, our agent, to be able to overcome any opponent to that law. If there are people beyond the law, then the government loses its legitimacy because law abidingness becomes an arbitrary decision left to each person. When encryption is designed to thwart the government’s ability to enforce the law, it undermines the political equality that is a democracy’s foundation. For the government to ensure the rule of law, it must be more powerful than anyone within the country. The same process is at work within the digital domain. The government understands that unbreakable encryption allows some people, the technologically superior, to resist the state or act beyond the law. When they act beyond the rule of law, justice becomes impossible because political equality before the law no longer exists. As Thucydides warned 2500 years ago, the strong will do as they will and the weak will do as they must because only justice is found between equals. If the technologically superior are beyond the law, then justice, a government’s highest responsibility, becomes impossible.

Is there a limit to how far the government must protect the common good?

We can see the government’s commitment to justice and political equality in regards to physical security in the harrowing cases of Raoul Moat , Derrick Bird and Christopher Dorner. These men placed themselves above or beyond the law. In response, the government of each country had to stop them to fulfil its respective responsibility to the rule of law and to the public. Would we accept as legitimate a police force or a government that said it was not in the public interest to pursue these men? If the government did not have enough weapons to stop them, then the public would be in danger. In a less violent realm, the government’s pursuit of tax evaders or counterfeiters illustrates the same point. Would the public or law enforcement accept a government that said, “This is too complicated, they used really long numbers to defraud you. We cannot figure it out, so they are free to continue.”

If the rule of law does not work, no one is safe.

The public want to be kept safe and they want to know the rule of law works. The public are kept safe by a government that can defeat those who seek to use violence or other illegitimate means to achieve political change. In a democracy elections, and the rule of law, show that everyone rules and is ruled in turn, and no one is permanently superior to another. However, encryption allows some to have technological superiority over others and over the government. Therein, we see how technology creates a political problem.

The problem is not technological it is political.

The problem we face is not technological; it is political.  We cannot allow the technologically superior to dominate or exploit the technologically inferior within a democracy. In that case, technological inequality will quickly lead to political inequality because some are able to live beyond the rule of law. The government has to be able to enforce the rule of law. At the same time, a change in technology or encryption will not remove the modern state and its historical political prerogatives. If we want to change the modern state and its historical political prerogatives, we have to change the laws or remove the state. Perhaps it is time to review the terrorism legislation that appears to enable this work. Yet, even that will not change or alter the fundamental social contract a government has with a citizen. Then again, it may be time to restructure the modern state. However, I think few will want that outcome to obtain some sort of “digital privacy”. The modern state has created freedoms or rights that people want and will defend. The call for unbreakable encryption means that the public are being asked to sacrifice their political equality and political rights so that the technologically superior can live beyond the rule of law. Such a demand will destroy democracy and it will either descend into tyranny or anarchy.


[1] In the case of the Queen, people will recall this took several wars, two civil wars, many people being killed to get to this point. The crown did not accept parliament’s supremacy lightly or willingly and the issue *still* remains unresolved cf. royal prerogative, though it has reached a point of healthy compromise.  In the United States the constitution, which enshrines the rule of law and political equality of rights reigns supreme. Even the promise of that document was not fulfilled until a long and bloody civil war was fought to ensure the rule of law and self-government was possible.

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When the NSA cannot decrypt, the seeds of the electronic state of nature are planted

The Social Contract

The Social Contract (Photo credit: Wikipedia)

When the NSA can no longer decrypt encrypted documents, we will not usher in a new era of liberty or freedom. What we will learn is that our freedom has a dangerous limit. We will wake up to the truth that our freedom is found within the laws of a polity or a community. The area outside a state’s control is literally lawless. As Aristotle explained, a man who is outside the city (the laws) is either a beast or a god.  When someone lives beyond the laws or justice, the freedom of those within the community is under threat. Such a lawless area, beyond the community’s laws, is a state of nature. As Hobbes and other political philosophers explained, the modern political state was created to escape the state of nature because life in it was solitary, poore, nasty, brutish, and short.[1] The same could be said for the internet.

Beyond the law, beyond justice

When the internet creates such a place beyond the state’s control through laws and justice, because it lies beyond the state’s power, it can be considered an electronic state of nature. The state protects us, and itself, to ensure our freedom within the rule of law. In many areas of the world, the state can be considered a threat, but only to the extent that it is not limited by the law. This is not the case in the West because the liberal democratic systems keep the state limited rather than absolute.  The state must justify its democratic mandate, the consent of the people, before the law and act within the social contract that created it. However, the liberal democratic state is threatened by the internet. The threat is not because it brings “transparency” or “openness”. Instead, it is a threat because it creates an area beyond the state’s control that has a direct effect on the state’s ability to operate.

The internet creates a twofold threat. First it creates an alternative approach to memory, which challenges the state’s monopoly on memory. The second part is that its approach to memory enables a new way to organise and distribute information. On its own, such a change brings benefits, which citizens and the state want. However, the problem we face is such a technical change comes with political consequences. The political consequences is not so much that winners or losers are made, but rather that it threatens to undermine the liberal democratic promise. Within the liberal democratic process, we are all equal before the law. We may be naturally unequal, but we are politically equal before the law. However, those with the technological capacity to live beyond the law are not equal before the law. They are above or beyond the law.

Our freedom stops where the law stops

Where the rule of law stops, so does our freedom. Our freedom does not begin where the law stops. The rule of law creates our freedom because it sets the limit by which neither the state nor other men can exceed without democratic mandate. When Edward Snowden acted, he believed it was for a higher purpose. He believed he had to break the law to defend it. Yet, he has not defended the law. Instead, his lawlessness revealed the technological threat to the rule of law that the NSA struggles to defend against. The internet is a not a benign democratic world of freedom. It is a violent, nasty, realm in which trolls emerge and the technologically powerful shut down the weak by hacking their systems or crashing their site. The political powerful can label the critical or quarrelsome as trolls or use their “followers” to silence them.  We may enjoy the webs’ convenience, but it has a Faustian bargain because it erodes the state’s democratic mandate by showing that we are not equal before the law. The state cannot bring justice to those beyond the law. If it can no longer deliver justice or protect itself, our social contract then becomes void. An electronic state of nature will return us to a physical state of nature.

We may like to think that the geeks will inherit the world and it will be benign. We want to believe the ethos of the web will somehow be different from what we had previously. Such a view is naïve about politics, the friend/ foe distinction, and human nature. Technology may have changed, but human nature remains unchanged.  Man’s restless desire of power after power and the need for more power to live well, remains.[2]

The strong do as they will the weak do as they must

In this electronic state of nature, we return to a world that Thucydides warned about over 2500 years ago: “The strong do as they will; the weak do as they must and only between equals can there be justice.” As the internet is not based on democratic principles, it will not give political or even digital equality. At best, the internet only magnifies the power of those who are already power. At the worst, it changes the face of power it shifts from the manufacturing, industrial, or the financial, to the technological.  The technologically powerful may proclaim their “hacker” ethos or their allegiance to the “cluetrain” manifesto, yet they have not escaped human nature. Power corrupts. They want to be powerful and they want power to do as they will not as they must. Privacy only offers a convenient shield for their desire for power. The state and the current system, hinders and inhibits their desires. Liberal democracies usually find a channel for that desire for power into the common good either through fame, glory or by political ambition serving the public good.

We killed God to be free, now we will kill the state for privacy

Those who seek to destroy the “surveillance state” claim they will set us free.[3] (Man is born free but everywhere he is in digital chains). What is unasked or overlooked is whether to destroy the “surveillance state” the state has to be destroyed. Over 100 years ago, we killed God to have our freedom. Now we must kill the state to have our privacy. If the surveillance state is dismantled how can the state fulfil its basic purpose to defend its citizens? How does it fulfil the constitutional promise to protect against threats foreign and domestic? If the state cannot protect its citizens, it loses its democratic legitimacy. If it cannot decrypt the messages to protect its citizens from those threaten them, who will have the capacity to do that work? We assume on no evidence except the demands of “privacy” that the “surveillance state” is dangerous? Does this mean the government is dangerous by extension? Have we failed to appreciate or understand the purpose for which governments are founded? Moreover, we fail to understand the relationship between citizen and state and what the state must do to fulfil its part of the social contract. If we destroy the NSA and allow someone else to occupy the technological high ground, who will defend the weak? We elected a government to protect us. Are those who seek to destroy the system that defends us democratically motivated?  Privacy is not an end in itself. It is a means to an end, a political end. What is the political end if it does not secure the public good? If privacy requires the state to be destroyed, how does that serve the public good?

If we dismantle the surveillance state will evil disappear?

We are told the “surveillance state” is dangerous and a threat, yet we have not been given any evidence that freedoms have been damaged by the NSA. There has been no evidence that the NSA has tried to use the information for blackmail, to alter elections, or to undermine the democratic process. It has acted according to a democratic mandate translated through legitimate government acting according to its constitutional principles. In that regard, the state has been limited by the law. Encryption is neither about privacy nor the freedom of conscience, which was the basis by which Lock sought to limit the state. Instead it is about power. Who controls the internet controls the world. If the internet is beyond control and the technology powerful can act with impunity, then we are all in danger because we have an electronic state of nature. Yet ware told we must fear the surveillance state and dismantle it because it “invades our privacy”. How it invades our privacy is not clear since our digital lives are not the same as our physical lives. If we do away with the NSA and create encryption that it cannot break, then what? Are we free? What are we free to do we cannot already do in a liberal permissive state?

When we no longer have laws, who will chain the beast that is man?

People may see the internet’s rise and the demise of the NSA and the so called surveillance state as a good thing. Let us consider what this would mean in practice. What would happen if there were no police on the street tomorrow? For a time people would still obey the law, because 90 % of the people do not need the law to behave. The other 10% no amount of law will work. It is the 10% that the state and the law protect us from. When people can live beyond the law and the state, there is no justice because the rule of law, equality before the law, vanishes. Once the surveillance state is gone, will the threats stop, will human nature stop? No. Technology does not and cannot defeat technology. What we face is a political problem, not a technological problem. Yet, the technological hysteria over the surveillance state has clouded the political question. We do not have any greater clarity over the relationship of the citizen and the state. In the end, it has only confused and distorted the democratic contract, where democratic due process is described as conspiracy and sensationalism shouts down sober reasoning about the purpose of government.

 


[3] One commentator said that engineers should dismantle the surveillance state from the inside. It reminds me of scientists who upon realizing the dreadful power of nuclear weapons wanted to somehow un-invent them. We may as well try to dismantle the modern world.

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