Balkinization  

Thursday, March 23, 2006

The New Constitutional Order and the National Surveillance State

JB

Sandy Levinson and I will be presenting a paper tomorrow at a Fordham Law School conference on The New Constitutional Order? (The question mark is part of the title, suggesting that the conveners are not sure about the answer).

Both Sandy and I offered a theory back in 2001 about how constitutional change occurs through judicial interpretation. It's the theory of "partisan entrenchment," and roughly speaking, it holds that constitutional change stays in rough correspondence to the agenda of the national political coalition because of the appointments process. You can find more about the original version of the theory here.

In our Fordham talk, we address some of the things we learned in the five years since we first offered the theory. The most important event, of course, was 9/11 and the reconstitution of politics around the war on terror. One of the key points we'll be making tomorrow is that many constitutional changes are driven by larger forces that both parties find themselves responding to. Although the Republicans happened to be in power immediately following 9/11, we believe that the long term changes in constitutional understandings and institutions that are now occurring would have happened even if the Democrats were in power, although the details might be different in important respects. For example, whether or not President Gore would have conducted the NSA surveillance program in secret without informing Congress, or would have specifically come to Congress in 2001 for a revision of FISA to allow it, we think that there would be reforms in intelligence gathering process to make new forms of surveillance legal. That is not to say that there are no differences between the Bush Administration and a hypothetical Gore Administration on national security-- we suspect there would be many. But both would have participated in the long term trend in institution building we think is in the offing.

In our paper we describe the rise of what we call a National Surveillance State which occurs in response to the felt needs of warfare and foreign policy in the 21st century. Philip Bobbitt has pointed out that the geopolitical demands of war and foreign policy often provide the impetus for changes in domestic political arrangements, because the way that the state faces the world outside it is often reflected in the way that it faces its citizens. This National Surveillance State involves a significant increase in bureaucracies devoted to promoting domestic security and (as its name implies) gathering of intelligence and surveillance using all of the devices that the digital revolution allows.

Data mining--- through which agencies like the NSA can collect and collate vast amounts of conversations, e-mails and Internet traffic between individuals within the United States and foreign countries,-and, for all we know, substantial amounts of such communications within the United States as well--is the consequence of new developments in high-speed computers plus complex mathematical programs that allow computers to recognize speech patterns, e-mail messages, or Internet traffic patterns that indicate possible terrorist activity. Comprehensive data mining and other new forms of surveillance become especially important given the development of what Bobbitt terms "virtual states," geographically amorphous collectivities that, because of access to weapons of mass destruction, can present basically formidable if not undeterrable threats to the United States. Virtual states, because they lack geographical locations, must be nipped in the bud as soon as their activities and plans can be identified. This necessitates constant surveillance and processing of vast amounts of information because of the perceived costs of making even a single mistake in failing to identify a threat.

We do not doubt that similar concerns have led the Bush Administration to cut corners on international and domestic law concerning detention and interrogation of prisoners. However, we argue that the development of increasingly elaborate systems of surveillance is far more characteristic of the kinds of government policy necessitated by technological change. Torture and prisoner mistreatment have been around as literally as long as warfare itself-what is new is the harnessing of digital technologies to produce a Leviathan-like information processing machine. A second key change, we think, is the increasing merger between law enforcement and military security in the domestic arena, precisely because the domestic arena increasingly becomes part of the modern battlefield.

From a constitutional perspective, the National Surveillance State involves a further shift of institutional power and authority from Congress to the Presidency. There is no serious possibility, we think, of completely forestalling this shift, which, after all, can be said to have been underway at least since the end of World War II. Rather, the only questions are how much further executive aggrandizement will occur and whether new institutions can be adapted to prevent the inevitable risks that will accompany this shift.

The first is the risk of harm to individual privacy and civil liberties. The second is the inevitable dangers of concentrating too much power in one branch of government without accountability and transparency. The third risk, which stems from the second, is the danger of informational insularity, in which the executive is unable or unwilling to acknowledge and assimilate new information that requires it to reshape and redirect its plans. Irving Janis some years ago coined the term "group think" to refer to institutional tendencies toward such insularity, and recent work in behavioral psychology has reinforced such concerns. One advantage of a system of separated powers, especially if one of the competing institutions includes strong individuals from the opposition political party, is that the other branches, because of their natural competition, consistently force new information and impose hard learned lessons on the others. From this perspective a constitutional system is also a system of information gathering and a system of learning. But if one branch-the Presidency-- need pay no attention to the others, or can thoroughly dominate them through appeals to party loyalty, as has definitely been the case during the Bush Administration, then it will not be forced to confront the recalcitrant information about the world the others have the incentive and the opportunity to provide.

The National Surveillance State arises from a real concern: the enhanced need for processing information about the outside world and reacting appropriately to it given the changes in foreign affairs and warfare. The danger is that the concentration of power in this new state will prove particularly inept at processing the relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and worrisome example.

The need for the National Surveillance State arises from war and foreign policy, but its consequences will reverberate throughout domestic politics. Courts will play a role in determining the boundaries of this emerging constitutional construction, but for the most part, we predict, they will legitimate and bless it, much as they legitimated and blessed the administrative state, the welfare state, and the national security state in previous years.

There is no particular reason to view the constitutional debate over the National Surveillance State as strongly partisan. For better and for worse, there may be no meaningful division between the Democratic and Republican parties with regard to the larger imperatives for and the broad outlines of the National Surveillance State, and indeed, the constitutional problems that these institutions present may cross cut existing party alliances. The difference between the two major parties will consist we think, in how new forms of governance are implemented, what kinds of accountability and transparency mechanisms are built into the new institutional framework, and how the balance between efficacy and civil liberties is struck. Even if some form of the National Surveillance State is in our future, a great deal turns on the details of what kind of state it becomes. And that is why it will matter a great deal who holds office and who is appointed to the federal courts in the next decade.


Comments:

My first scan of this gives me a renewed appreciation of the brains you're carrying around, dude.
 

Sunday: At some point, one has to stop giving the White House the benefit of the doubt about its desire to stay within the law. It's increasingly clear that we no longer have simply a good faith disagreement about the scope of Presidential power, one in which the President's lawyers somehow wind up making one implausible legal argument after another. Rather, it's a fairly deliberate strategy of concentrating power in the Executive regardless of its legality or constitutionality. In this Administration, the Bill of Rights and the rule of law are strictly optional.
I agree.

But today: For better and for worse, there may be no meaningful division between the Democratic and Republican parties with regard to the larger imperatives for and the broad outlines of the National Surveillance State, and indeed, the constitutional problems that these institutions present may cross cut existing party alliances. The difference between the two major parties will consist we think, in how new forms of governance are implemented, what kinds of accountability and transparency mechanisms are built into the new institutional framework, and how the balance between efficacy and civil liberties is struck.

Given Bush's criminal behavior w.r.t. warrantless surveillance and torture/CID treatment, his wider indifference to staying within the law, and his party's zombie-like allegiance to him, I think -- at least I deeply hope -- that there are meaningful party differences in that.

But maybe you're right, and there aren't. In which case we need a new party or two. I'm waiting for Democrats to redevelop spines and -- dream with me -- just a few Republicans to redevelop a conscience. But I'd hate to wait too long.
 

I trust you read the Chief Justice's dissent in the minority, joined by Scalia, issued yesterday March 22, 2006, in Georgia v Randolph, a 4th amendment case. The full opinion is here: http://www.scotusblog.com/movabletype/archives/2006/03/opinions_in_geo.html
It is interesting to glimpse a coalescence of a fairly consensus national identity in times of armed conflict, though as you and Sandy Levinson have highlighted on your website recently, there are numerous internal perils even in a system as strong and balanced as the US' government.
I trust you will receive very interesting questions at your presentation tomorrow. The best to both of you.
John Lopresti
 

If the shift of power to the executive continues as it has been during most of the last century, the question that naturally arises in my mind is: where will the market for freedom next arise? It just seems to me that throughout history, people have been dominated by strong authority, only to enter at some point in time a stage of rebellion against that authority, a struggle towards freedom, sucessful or not.

It seems that as authority grows, a market for freedom rises as well, amost as purely physical forces, rising and falling in balance with each other.

I have to wonder as well how the accelerating rate of change with respect to how technology impacts people's live my affect where the next market for freedom springs up. One things seems evident, that the harder authority tries to prevent markets for freedom from appearing, the more force those markets gain.
 

Two quibbles:
The national surveillance/security state springs from the prerogatives of power and 'greatness,' more than technology itself, And we're a super-power.
Also, it will be interesting to see what common ground is drawn between what remains of small government conservatism and the left.
 

OK, I had time to come back; and despite the cogent explanation of the trend, it is too depressingly Orwellian not to resist.

"Virtual states ...necessitate[] constant surveillance and processing of vast amounts of information because of the perceived costs of making even a single mistake in failing to identify a threat."

Rather than talk about realistic measures to reduce the permanent vulnerability to suicidal terrorists, Bush intensified the alarm to support his Iraq mission from God.

"The danger is that the concentration of power in this new state will prove particularly inept at processing the relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and worrisome example."

Nah, that was willful blindness and deceit. The real failure was in not investigating Moussasoui despite the urgings of an FBI station, because of rejection by a bureaucrat or two who made a different call. In fact, investigation by data mining is highly inefficient; and human judgment, still required, sometimes fails.

We've got a lot of thinking yet to do about what kinds of security improvements work best. Rapid computerized electronic surveillance of certain categories of communication might be by consensus removed from full Fourth Amendment protection; but there is no proven need to dispense entirely with judicial and congressional oversight even as to these categories, and experience of the last five years has not even shown such surveillance to have been of much value.
 

just covering my own ass here. Your reference to technology was specifically to data mining, not some sort of ideological 'pull' implicit in technology itself.
My mind pulls in its own directions before I have that first cup of coffee (if that's an excuse).

The my other comment stands. Those anarchic tendencies in American culture for which William Edmundsen and so many others have so little patience might still serve a useful purpose.
 

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