Balkinization  

Wednesday, July 03, 2013

Sophistication and the surveillance state

Sandy Levinson

I'm unclear what "thoughtful people" (i.e., those people evoked by pundits and editorial writers as representing sober "non-ideological" centrist thought, unless the hotheads further along the political spectrum) are supposed to think about the NSA revelations.  The New York Times has an odd editorial that seems to suggest that European and other governmental critics of the NSA are simply "playacting" because all sophisticates know that in the modern world no one is a "gentlemen," as defined in Henry Stimson's famous comment that “Gentlemen do not read each other’s mail.”  Every government, at the very least, should know that its ostensible "friends" and "allies" will be doing whatever it can to find out whatever it is doing.   So, the editorial suggests, we really shouldn't take seriously the protests about NSA surveillance of ostensibly "friendly" foreign governments. 

So why, incidentally, is Jonathan Pollard, for whom I have no particular sympathy, languishing in a US prison after at least three decades, for giving intelligence information to our close ally Israe?.  (I presume that Aldrich Ames is different, though I can't help wonder if the ultimate deal will be a trade of Ames, for Snowden.)  Are we not, incidentally, at least as vigorous in trying to listen in to Netenyahu's conversations as, say, those of Angela Merkel?  Has Israel simply been inept in finding American intelligence operatives, or are Israeli officials too prudent to make an issue of it?  In any event, what exactly is a sophisticate supposed to think these days about the most recent forms of surveillance revealed by Mr. Snowden? 

Comments:

Can't say I much care about surveillance of friendly governments; Governments don't have friends.

I'm very much concerned about our government's surveillance of Americans.
 

The real problem of course is that this surveillance program is also a means of economic and industrial espionnage. Whether or not government have friends, they have economic partners. Spying on them while on the verge of negociating one of the biggest commercial treaties ever signed between USA and EU is unfair to say the least.

The problem for us Europeans is not that you do not seem to trust us, but that we are no longer able to trust you.
 

Intelligence gathering against other governments - friends and foes - has been statecraft for a millennia.

One of your citizens assisting another nation in such intelligence gathering is a traitor.
 

@Bart This is hardly the problem, as I stated in my previous comment. When China spies on your technological and industrial secrets, you are outraged : how dare they ! When you try to gather intel on our technological and industrial secrets, oh well, that's just normal.

But there is worse : China is clearly a competitor of yours (and of the rest of the world, of course), so it actually makes sense that they would spy on you. By contrast EU and the US are going to sign in the next few month a huge treaty in commercial cooperation. To spy on your economic partners is not acceptable.

 

In these days of globalization, there seems to be a clash of principles (principalities?) of capitalism, inspiring competitive spying, even among economic partners. Consider America's National Security Strategy, especially that announced in Sept. or Oct. of 2002, wherein America asserted it is #1 in the world militarily, economically and politically, and that America would do whatever is necessary to remain #1. I anxiously await an upcoming National Security Strategy for an update. This is sort of like the children's game of "King of the Hill." Other nations know of this published Strategy as they take steps to improved their positions, especially economically. The flood of technology is readily availed of by all competitors. Cyberspace is sort of the next frontier in economic competition. With globalization still in play, can the world come to some accommodation on some reasonable forms of control/regulation of cyberspace? If not, is globalization doomed? And if globalization is doomed, what may be the economic effect?
 

@Shag: I agree entirely, but I still find disturbing (to say the least) that the United States would jeopardize the opportunity to open new markets in Europe just for the pleasure of it. Actually, I am not sure that the US spying program was *really* detrimental to us in terms of the amount and importance of the intelligence they gathered, but it is a disaster from a mere symbolic point of view. As I stated in the first comment, the real issue is trust: how can you engage in a commercial cooperation when you are pretty sure that the fairness of it is most probably to be undermined ?
 

Mathieu:

When you play a game against a rival, it is human nature to cry foul when the rival scores through subterfuge and then cheer your side for their ingenuity when they do the same.

In a negotiation like the proposed trade treaty between our nations, you are a fool if you do not do everything possible to learn the other party's bottom line. There are billions of dollars on the line. At the same time your government was expressing faux outrage at Snowden's disclosure of our spying for your public's consumption, it may have been reviewing the report of the disclosures of one our our negotiators with whom a French agent was having sex to obtain information.

This is all just another round in the Great Game.
 

@Bart Look, I'm no idealist. I know how it works. I am by no means expressing a moral condemnation, but only a real puzzlement.

Of course, spying on your rivals is profitable, who says the contrary ? My problem is that spying on European industrial secrets may be quite counter-productive and economically detrimental in the long run.

The trade treaty to be is supposed to be a win-win situation : opening new markets for both parties, hooray. Now, if you sell on our markets products designed by us and obtained through spying, and you sell them cheaper than our own products, there is really no reason for us (as economic agents, not as moral idealists) to accept the deal in the first place.
As you said : billions of dollars (and Euros) are on the line. Spying on us won't help you secure them, quite the contrary.

I will not take issue with your innuendo that French agents (or the French in general?) are promiscuous, although it also implies that US agents are easily lured into bed.


 

The principle of "good faith" in contract law apparently does not extend to the "Great Game." Kids playing "King of the Hill" may not understand "good faith" or even basic fairness. But globalization is not supposed to be governed in the manner of colonization of the past that the world continues to pay for its humongous costs.
 

The point is that foreign intelligence gathering is just a cover story for domestic intelligence gathering, much as CIA intelligence analysis is just a cover story for covert operations. The use of intelligence gathered as foreign for prosecution of drug crimes is explicitly permitted. And any international political movement (safe water, environmental protection against resource exploitation, microloans to women's businesses) is immediately subject to surveillance. Given the unlimited power of the State Department to declare organizations as terrorist (anti-Israeli-blockade-terrorism, anti-whaling-terrorism, nuclear disarmament terrorism), and the magnetic pull for police of counter-opposition tactics, we are bound to see more domestic applications. Surely you can't object to the use of communications surveillance against child pornographers, organized crime, racist survivalists, gangs, "human trafficking" ...
 

Mathieu:

"I will not take issue with your innuendo that French agents (or the French in general?) are promiscuous, although it also implies that US agents are easily lured into bed. "

Promiscuous? This is work.

The French are hardly the only ones who use sex to gain intelligence through pillow talk or blackmail.

Given all the scandals of our diplomatic security sleeping with prostitutes when the Secretary of State goes on the road, I am confident we Americans are particularly vulnerable to this sort of espionage.
 

Bart :

Point taken.
 

Isn't the underlying question whether any of us really believes in "trust" any longer? That is, do you reveal yourself as a chump if you trust any government to maintain traditional liberal barriers between protected "private" and public space. And, presumably, the same is true of those persons called business corporations. And, ultimately, we must wonder about more conventional persons, especially in the world of GPS and other ways to keep track of people (including, of course, ostensible intimates and children) we may have our suspicions about. Enquiring minds just want to know....
 

Sandy:

Trust in God and yourself, but verify everything else.
 

Professor Levinson has a very important point. But trust is precisely what law deals about. When I buy a product available at different companies, I have a right to expect that these companies haven't sign a secret agreement to maintain prices higher than those which would result from free competition on the market. Of course, I cannot trust them, because having such an agreement would be, for them, the rational thing to do. This is why we have antitrust laws (how ironic monopolistic behaviors are called "trusts" in English!); maybe they are not very efficacious, but at least we are better off with them than without.

The same goes with citizens-governments relationships; there are laws that allow us to have some trust in our government. And I see nothing idealist in asking the government to comply with them.

If we had adequate laws to deal with Internet surveilance, maybe we could trust more our governments.


 

Can we expect next from our SALADISTA (FKA our yodeler) a chorus of WW II's "Praise the Lord and Pass the Ammunition ... "? Even Ronnie Reagan didn't go as far as our SALADISTA with his famous "Trust but verify," which I have long thought was Reagan's greatest achievement.
 

Shag:

I was not being flippant.

Between working in military intelligence and criminal law, I am under no illusions about human nature, especially in positions of power.
 

Working in military intelligence and criminal law can only produce illusion from my perspective. These have been failed endeavors "for a millenia." Are you suggesting these are somehow specially gritty, "real" human undertakings? It's easy to proclaim one's acceptance of a vulgar Hobbesianism that allows you to proclaim, "Treason!" So easy, in fact, that you resort to the metaphor of "game" to depict the behavior--sick, foul, unpatriotic, selfish behavior--as less vile than it is.
 

Joseph Stiglitz's Guardian UK 7/6/13 column "Trade Talks Shouldn't Be Shrouded In Secrecy" doesn't make specific reference to "good faith" but stresses the importance of fairness, including in addressing common problems. Consider his example of US cotton subsidies favoring a few rich farmers and their impact on cotton farmers elsewhere. Is it more important to pull the wool over the eyes of trading partners/ competitors?
 

Dean:

The intelligence gathering and criminal justice systems are not particularly "gritty," but they do bring you into contact with people who lie as a matter of course.

I cannot claim authorship of the term Great Game applied to relations between nation states, but the term is apt. Foreign relations takes place without any real legal structure and is indeed a game of the highest order.

Finally, our Constitution defines the term treason and Snowden arguably crossed that line when he provided information about our foreign intelligence gathering to the Chinese, an act that cannot be in any manner construed as whistleblowng.
 

"They do bring you into contact with people who lie as a matter of course." This is precisely why relying on one's experience in those arenas is a bad move when it comes to justifying broad-swath surveillance.

Again, it's easy to depict or model or view foreign relations as mere gaming, but there's more to it than that, a fact that should be evident to anybody who isn't captivated by its gaming aspect. (Besides, I didn't suggest you claimed authorship. That's beside the point.) Games involve arbitrary rules designed to fashion a fictional contest. "Real legal structure" shares some of the features of games, but clearly exceeds (and falls short of) them.

I'm not sure the phrase "provided information" or the preposition "to" mean what you think they mean. Adhering to the enemies of the U.S.? Giving them aid and comfort? Levying war?
 

Let me add in response to Prof. Levinson's arguably coy but more likely rhetorically too clever by half queries that invoking thoughtful people to gauge our response to plainly thoughtless, heedless governments is a mistake. If folks like Mr. DePalma can so cavalierly accept some baseline brutal reality about how it all works when nations tussle--if, pace Prof. Levinson, we need to couch words like "friends" and "allies" in quotes, because we're too nervous to imagine using them stripped of our cowardly hedging and caveats--then the answer to all of these questions becomes obvious and easy. We sophisticates have leave to recognize these revelations as evidence for what we have always suspected: our government officials are incompetent, misguided, and in many cases purely hateful fools. They are the high school jerks we tolerated. They now wield blunt force authority, which we fear. I'm sure many of us sophisticates are at the same time grateful for their incompetence, their stunningly stupid modes of intelligence and enforcement.
 

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Dean:

If folks like Mr. DePalma can so cavalierly accept some baseline brutal reality about how it all works when nations tussle--if, pace Prof. Levinson, we need to couch words like "friends" and "allies" in quotes, because we're too nervous to imagine using them stripped of our cowardly hedging and caveats--then the answer to all of these questions becomes obvious and easy. We sophisticates have leave to recognize these revelations as evidence for what we have always suspected: our government officials are incompetent, misguided, and in many cases purely hateful fools.

I prefer the dictum "power corrupts and absolute power corrupts absolutely," but you pretty much nailed it.
 

Does our SALADISTA (FKA our yodeler) really think Dean "nailed it" with the portion of Dean's comment our SALADISTA quoted, leaving out the last 3 sentences of Dean's paragraph? Based on earlier comments by Dean, I sensed some tongue in cheek that did not get through to our SALADISTA.
 

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