The recent revelations about the NSA surveillance programme have cause concern and outrage by citizens and politicians across the world. What has been missing, though, is any extended discussion of why the government wants the surveillance and on what basis is it authorised. For many commentators surveillance is wrong and it cannot be justified. Some commentators have argued that surveillance is intrinsic to the nature of government and its ability to deliver the public good. Few, though have looked at the surveillance within a wider context to understand how it developed. A notable exception is the work by Steven Aftergood.
In his excellent blog NSA surveillance and the Failure of Intelligence, Aftergood looks at the history of domestic surveillance. He refers to a paper by Army signals intelligence officer Major Dave Owen. The paper covered the military’s historical role in domestic surveillance. In particular, the effect the Church Committee had on domestic surveillance by the military. Despite the effect, Owen’s says that the attitude to domestic surveillance changed over the past 10 years, which means the oversight mechanisms have been ignored. Aftergood wants to know why the Church Committee’s oversight systems appear to have faded over the past 10 years.
“But what reader would have imagined that it could possibly extend to the collection of call records and email metadata generated by nearly every American citizen?”
Other commentators like Glenn Greenwald and Jay Rosen have also posed this question. Yet, is this the right question? If we are to argue that the surveillance is inappropriate, we need to understand the change in context. If we look at the world 10 years ago, when attitudes to surveillance changed, the attack of 11 September 2011 is seen as a catalyst. However, it is not the source of the surveillance. The surveillance reflects the constitution and the social contract the government has with its citizens.
The source of the surveillance is the law and the constitution.
To protect the public after 11 September 2001 attacks, the Public Law 107-40 was passed on 18 September 2001. (P.L. 107-40 (September 18, 2001); 115 Stat. 224) As the constitutional response to the attack, it has changed the United States government. The law has changed the constitutional context for surveillance. The law has expanded the government’s power as necessary to deal with the threat the United States faced and continues to face. To understand the Public Law 10-40, and its effect, we need to look at what it authorises.
To use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
What the Congressional Research Service analysis points out is that this authorisation is different from any other. The reason is that the joint resolution authorizes military force against sates, organisations and individuals. They rightly point out that:
Two issues emerge from their analysis, one strategic the other constitutional. Both explain why we need the surveillance and why it is justified. At the strategic level, the law gave the United States government the legal power it needed to deal with the threat. They needed domestic surveillance to find the threats. To put it bluntly, the intelligence agencies needed to find individuals who were already in the United States and target them. To put it even more directly, you need intelligence before you can target someone with military force. Surveillance is needed so you can gather the intelligence needed to target the threat. As the 11 September 2001 attackers came from inside the United States, domestic surveillance would have to increase. On a strategic level, this makes sense. Organisations that want to attack the United States do not identify themselves or their members. At the same time, these organisations would have been aware that the United States expended more effort overseas to prevent and pre-empt these attacks than on a defence against an attack from within. What this means is that the attackers saw America’s vulnerability and exploited it.
The constitutional challenge of fighting a war remaining a republic
Constitutionally, PL 107-40 meant that American would, as it tried to do in Vietnam avoid “war fever” and take a relatively moderate approach to something that by its nature is immoderate. America sought to use PL 107-40 to bridge the constitutional gap between peace at home and war abroad. The constitution does not work well when the two realms are in tension because it was written and intended on the belief that peace and war were clearly defined. Since 1945, the two realms have been blurred. The American regime, and the constitution, struggle with the need to wage war without declaring it. When confronted by this challenge, George W. Bush faced the same problem Lyndon Johnson faced. We can laud Bush’s statesmanship to avoid a “war fever” but we can question his statesmanship for his decision to avoid the constitutional question. The question is one that Obama has inherited without change even if details have changed. Unlike Johnson (and Nixon) in Vietnam, Bush (and to a lesser degree Obama) did not face the constitutional question concerning his statesmanship. Unlike in Vietnam, where the underlying foreign policy goal was in great debate, in no small measure because of the domestic challenges, the attack of 11 September 2001 settled the immediate constitutional question for Americans. What remains uncertain, and unresolved, is the decision’s constitutional effects.
The constitutional debate is whether America’s political structure can sustain its world role.
The constitutional debate will not be on surveillance or civil liberties. We are not facing an issue of civil rights. We do not have a 21st century Martin Luther King who is trying to deliver a people from a constitutional injustice. Instead, surveillance is a symptom rather than a cause of the constitutional crisis. Perhaps with greater understanding of constitutional history and the constitutional effects of war, commentators would have seen this issue. How does America remains secure in the world where such threats exist? Can it do this without a constitutional crisis each time the threat emerges? Perhaps a constitutional crisis the price that America has to pay to remain secure. Perhaps the deeper question is who decides when the threat is no longer a threat? We may believe that Bush made a poor decision. However, what alternative did he have? What alternative does Obama have? If we simply say the threat is the fear of tyranny from a president swollen with power from foreign wars, we miss the perverse result our constitution has created. In no small measure, our fear of an overly powerful president waging war abroad has had the unintended result that the government has to become more powerful and intrusive because America will not resolve the constitutional issue. Who will decide that the public’s demand that the president and the government act to keep them safe is now excessive? If security requires America to shape the world by its direct military efforts, how long can the domestic political system sustain the delegated power? To put it bluntly, is the NSA simply a bureaucratic response to the eternal problem of intelligence in trying to identify a threat or do we believe that Public Law 107-40 has created an American Caesar?
When America is at war, is it a republic or an empire, or both?
In the central chapter of America at the Brink of Empire, I looked at Lyndon Johnson’s statesmanship in Vietnam. He wanted to wage a war without declaring it. He wanted to remain a republic at home, continue his domestic programmes, and yet be like an empire abroad and wage war. He did not want to choose between foreign policy and domestic policy. By choosing a middle path between peace and war, Johnson failed to solve the problem. His response, though, was constitutionally similar to what Bush and Obama have pursued. The constitutional problem is not surveillance or a limited war. Instead, it is the constitution cannot sustain both peace and war because they demand two conflicting responses from the regime. Technologically, we may be able to put off the decision, but it remains. War requires unlimited acts, which would be constitutionally dubious without the necessity of war. In other words, what is the limit to the necessity of war? The law cannot determine that limit. War is an activity intrinsically without limit. By contrast, the domestic realm is one of limited and balanced power. The government rarely, if ever, acts in unlimited ways within the domestic realm because the political structure is designed to limit its power. The government is constitutionally limited by the public acting through its democratic representatives. The Public Law 107-40 authorised Bush and Obama to defend the country and defeat the enemy. Even though the NSA surveillance appears aggressive and unwarranted, it is legal, constitutional, and proportionate to the perceived threat. What is problematic is not the surveillance, which is only an outgrowth of the Public Law, but the constitutional logic that the law reflects. What this means is that the constitution cannot sustain America as a Republic at home and an Empire abroad because the two realms cannot be reconciled without a declaration of war.
Time for a debate over the choices Americans face to be safe in the world
What we need is a debate that moves beyond the sideshow of surveillance and political stunts. We need to debate the strategic choices that create the constitutional questions. We need to debate whether America is secure enough to revoke Public Law 107-40. Until the law is revoked, amended, or rescinded, it will remain the law of the land. As the overarching legislative mandate for military action against the terrorist attacks of 11 September 2011, the law explains why the surveillance has not been found to be unlawful nor unconstitutional. The NSA reflects what is needed to protect the United States. The law reflects a choice. We need to revisit the reasons for that choice if we are to change it.
If it is the law that needs to change, surely Congress is to blame.
We may believe that Congress failed to act appropriately against the domestic surveillance. For some critics, Congress did not exercise adequate oversight. Yet, this misses the point. If Congress has a role in protecting the common good, is the alleged lack of oversight the problem? In that way, they may be reflecting the public’s wishes. The social contract, the basis for any government’s legitimacy, comes from its ability to protect its citizens from attack. Congress reflected the will of the public through Public Law 107-40. Congress passed the law and expressed democratically what the public wanted in response to 11 September 2001. The law was passed with near unanimous support and very little, if any, public opposition. Even after warrantless surveillance became known in 2006, neither Congress nor the public wanted to change the law.
If we are to have a debate over surveillance in a democratic society, we need to know the purpose of government and the purpose of surveillance. We do not have a government out of control. We have a citizenry that wants to be safe. The citizens have delegated power democratically to the government to keep them safe. If we believe this is wrong, then Americans need to debate how America can be safe against the threats it faces. We need to debate whether a government at war can be limited in its ability to protect its citizens. Americans need to be informed about the political choices that government has to make to keep the republic safe. The choices are not easy, they are not simple, and they are never made with the intent to harm the common good. For those in power know they will be out of power and subject to the same laws. The politicians attempt to find the best political choice because the majority may rule to the extent that they protect the rights of the minority. The public need to be reminded that politicians do not act out of self-interest; they act out of their best attempt to understand what is best for the common good now and in the future.
We need to understand and act responsibly with the political experiment of a government of the people, by the people, and for the people. America has difficult constitutional choices before it. The public need to understand these choices. They need to know the political price that has to be paid to sustain their representational democracy. If the American public do not want surveillance, for their security, they have the democratic right to end it. However, political choices have consequences; to believe otherwise is to court disaster. The public must be able to explain what they will accept to keep America safe. To help the public, intellectual honesty requires commentators and politicians who question the NSA and surveillance to explain what good they want to achieve by stopping the surveillance. If commentators and politicians lack intellectual honesty to explain why their motives are higher than the public good, then the worst excesses of rhetoric and sophistry will emerge. History has shown that democracy face a greater danger from sophistry and rhetorical excess than from surveillance. When a democracy loses its intellectual honesty because of rhetoric and sophistry, then no one is safe.
 Balkin’s essay discusses the national surveillance state. What is not clear from the essay is whether technological surveillance change governments. In this argument, I agree with Orin Kerr’s response to Balkin. (Kerr, Orin S., The National Surveillance State: A Response to Balkin. Minnesota Law Review, Forthcoming; GWU Legal Studies Research Paper No. 462; GWU Law School Public Law Research Paper No. 462. Available at SSRN: http://ssrn.com/abstract=1341389) Kerr makes the point that this is a political issues not a technological issue. However, he misses the point that while it is a political issue, the politics is now shaped by a technological view of man.
Balkin suggests that surveillance expresses a new form of governance and we are in danger of having an authoritarian surveillance state. If this is the case, then we have to consider whether it invalidates liberal democracy. In other words, does technology change the nature of liberal democracy? If the surveillance state is a natural outgrowth of liberal democratic government, do we need to reconsider liberal democratic government? Do we have the crisis of liberalism? Is it time to reconsider what is the best political order if liberalism and liberal democracy lead us to the surveillance state?
 There have been many constitutional law review articles written on this topic. It is enough to say that no one has solved the problem. The best argument seems to be that the constitution has to adapt to the new era in which war is not declared and that the president appears to have enough constitutional authority and power to undertake military action short of war. However, the question that remains unanswered is how the republic reconciles itself domestically to the demand that foreign policy requires the constitution to become blurred. I explore the issue in more detail in my book.
 For example, the Obama administration worked to treat the terrorist attackers within a legal framework rather than treating them as combatants. The Bush administration treated them as enemy combatants. The Obama administration wanted to show its changed approach without repudiating or altering the underlying issue.
 In my book, America at the Brink of Empire: Rusk, Kissinger, and the Vietnam War I sketch the dual challenge of the civil rights movement affecting domestic politics and beginning to link with the Vietnam War and foreign policy. I argued America could not have both and chose civil rights over victory in Vietnam. By contrast, Bush and Obama do not have a similar domestic political issue and surveillance is not going to be the digital equivalent of the civil rights movement. To put it bluntly, Edward Snowden is no Martin Luther King.
 In this area, Aftergood’s work is a notable and recognised source of good practice concerning government secrecy with a focus on FISA and FICA.
A motion was brought before the Senate to attempt to revoke the connection between Public Law 107-40 and surveillance. It did not get enough support to make it to a vote.
“On January 20, 2006, Senator Patrick Leahy (D-VT), the ranking Democrat on the Senate Judiciary Committee along with lone co-sponsor Senator Ted Kennedy (D-MA) introduced S. Res. 350, a resolution “expressing the sense of the Senate that Senate Joint Resolution 23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States citizens.” This non-binding resolution died in the Senate without being brought up for debate or being voted upon.” http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_%282001%E2%80%9307%29 Accessed 12 July 2013
- New NSA leak shows email surveillance under Obama (rt.com)
- New NSA Leaks Show Email Surveillance Under Obama! (socioecohistory.wordpress.com)
- NSA to release list of prevented terror attacks (usahitman.com)
- Ex-NSA Leaker’s Advice To Snowden: “Always Check Your Six” (zerohedge.com)