Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.
After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information "fusion centers" and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:
In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.
Yet evidence has accumulated that the cure may be worse than the disease. Even though the press, public, and advocacy groups have had only limited access to their operations, several violations of civil rights and liberties have been uncovered. Fusion centers are presently engaged in regulatory arbitrage that threatens to permit future infringements of civil liberties violations to remain undetected and to tilt the legal playing field unfairly against watchdogs and accountability organizations.
Though we started the article over two years ago, I've seen little occur to assuage the concerns we expressed in it. Rather, the remarkable work of Dana Priest and Bill Arkin continues to reveal troubling contours of a "Top Secret America." Among their many findings: an army of contractors makes profits too vast even to be estimated by the top officials ostensibly supervising them (and who often bide time till they too can join the hunt for lucrative contracts). As Glenn Greenwald notes, summarizing an L.A. Times expose, "[D]omestic "homeland security" projects [include things like] $75 billion per year [for a] . . . boat with side-scan sonar to respond to a potential attack on a lake in tiny Keith County, Nebraska, and hundreds of '9-ton . . . armored vehicles, complete with turret' to guard against things like an attack on DreamWorks in Los Angeles." Devices developed for foreign wars were brought back to the homeland, including no-notice iris scans. As local police see shifts slashed and pensions threatened, highly paid contractors pursue unreviewable and amorphous "security" assignments in the beltway. Many privacy advocates have warned of the negative consequences of technological advances in data mining unmoored from a polity capable of assuring their proper use. A surveillance apparatus that seeks mainly to assure its own survival will find ever more ways of proving its worth and marginalizing its critics. What Jack Balkin called a "national surveillance state" has taken on a self-sustaining momentum: no member of Congress wants to be the one to blame if budget cuts are cited for agency's failures to detect and stop another terrorist attack.
But the growth of homeland security---as an industry and an agency---is rooted in forces more fundamental than the electoral. The $589 billion in homeland security spending since 9/11 has created a powerful corporate constituency for more "guard labor." Whether publicly traded or privately held, these firms are under constant pressure to expand profits and operations.
If the relationship between government and these contractors were arm's length, perhaps a sequenced program of openness and re-examination could increase accountability. An "open government" movement has long lobbied for more transparency in decisionmaking. Archon Fung has encouraged a complementary "open society" movement to subject the decisions of powerful private entities to scrutiny. An open government could set rules to assure a more open society, and could critically review the actions of its contractors.
But this model of accountability seems naive, even antiquated, today. It presumes a mass media that would routinely challenge powerful entities. We instead have broadcasters who see themselves as insiders, partners with the powerful. Why would GE-owned NBC rock the boat when it gets so many government contracts, and happily avoids so many taxes? And why would federal elected officials want to antagonize a potential source of campaign contributions?
Even if the media performs its watchdog role, it's an open question whether a critical mass is listening. Alastair Roberts' book Blacked Out is one of the best recent treatments of government secrecy. After analyzing freedom of information movements around the world, Roberts considers in his closing chapter whether they actually can do any good. For example, Mark Danner lamented a near complete lack of action against high Bush administration officials who had authorized torture even after details of their chilling program became clear. “Wrongdoing is still exposed; we gaze at the photographs and read the documents,” Danner observed, “and there the story ends.” I have the sense that precisely the same violations that sparked the Church Committee could happen again, and the resulting investigation would get about the same amount of coverage (and have about the same minimal effect) as the Financial Crisis Inquiry Commission did. And just as we are warned against holding banks to their obligations under law, so too does the complex of government and business interests involved in Top Secret America insist upon more freedom of maneuver.
I believe that when Col. Lawrence Wilkerson (former Chief of Staff to Colin Powell) characterized the US as a "security and finance" state, he was commenting on this untoward asymmetry. The government must take ever more extraordinary actions to keep afloat a banking (and shadow banking) sector that has frequently flouted the letter and spirit of the law. The alphabet soup of financial regulatory agencies appears bogged down in rulemaking quicksand, barely even able to collect the information necessary to do its job. Despite the national security threat posed by a sudden destabilization of financial markets, the US has only taken the most tentative steps toward creating a new Information Sharing Environment among the federal officials, local law enforcers, and critical infrastructure providers who might be able to foresee and prevent another financial crisis. By contrast, Top Secret America has perfected some forms of domestic intelligence gathering aimed at average citizens.
It's important to think about 9/11/01 and 9/15/08 together. The same financial forces that led to the near-collapse of the banking system 3 years ago also distorted the US response to 9/11. As subprime homeowners took out enormous mortgages, their government also used modern finance to put a whole new surveillance state on the tab. The Bush tax breaks benefited almighty Job Creators without demanding any documented job creation; its homeland security spending all too frequently enriched contractors without evidence of real returns. Both the Federal Reserve Board and DHS have used secrecy laws to deflect questions about their practices. In each field, interpenetration of state and corporate actors makes it difficult to understand who is ultimately acting, and to what larger ends. Over the past three decades, the finance sector has ballooned, as has homeland security, but few measure their costs and benefits in a rigorous way. Rather, we are told that each ensemble of private and public actors must shamble along, unquestioned, demanding allegiance and information from its subjects.
Beyond the National Surveillance Blob
Admittedly, it is easy to exaggerate the malign effects of these entities, just as Arendt may have overemphasized the enveloping potential of the "social." Arendt thought of the "social" as the out-of-control consequences of economic life ("mutual dependence for the sake of life and nothing else") that overwhelm the efforts of the polity or the individual. In a book titled Attack of the Blob: Hannah Arendt's Concept of the Social, Hanna Pitkin takes Arendt to task for this tendency, complaining that she "writes about the social as if an evil monster from outer space, entirely external to and separate from us, had fallen upon us intent on debilitating, absorbing, and ultimately destroying us." Thus Pitkin's elaborate metaphor of "the Blob," drawn from sci-fi films of the 1950s, for Arendt's sense of a "social" realm that defied democratic control.
Yet Pitkin acknowledges that some of Arendt's anxieties were justified, given that human powers seem to develop "a momentum of their own in ways we cannot foresee." And she concedes that Arendt anticipated the tenor of our time:
The power seems always to belong to someone else, who does not in fact employ it in ways that serve our lives or needs. Not only are the benefits of these extraordinary powers confined to a small and shrinking minority of human beings, but even those who benefit from them do not really control them. . . . The astonishing evaporation of the Cold War, removing the continual threat of nuclear annihilation that it involved, has already been followed by new nuclear proliferation and by local conflicts that make use of these weapons more likely than ever. We are destroying species, exhausting resources, fouling the earth so that it may soon be unfit for habitation. . . . We are ruining our world and seem unable to stop. We watch in fascinated horror---both metaphorically and literally, in front of our television sets--- as these various disasters rush toward us inexorably. . . .
The real-world problem that Arendt intended her concept of the social to address . . . concerns the gap between our enormous, still-increasing powers and our apparent helplessness to avert the various disasters—--national, regional, and global—looming on our horizon. . . .
We have developed astonishing techniques of communication, persuasion, indoctrination, organization. . . . Yet these extraordinary capacities somehow have not made people happy or free or even powerful. . . . We do not direct these, our alleged powers; if anything, they direct us and determine the conditions of our lives, developing with a momentum of their own in ways we cannot foresee and that are often obviously harmful to human life and civilization.
Restoring a sense of control will require many steps. Even business luminaries like Bill Gross and Andy Grove are talking about the need for fair trade and industrial policy. Christian Aid's fair tax policies would also check egregious corporate practices that evade sovereigns' authority. One of our deepest national security thinkers, Andrew Bacevich, underscores the wisdom of Washington's Farewell Address, a patriotic reminder of the dangers of foreign entanglements. A positive-sum society, devoted to real security rather than financial wealth, will have less need of the finance and surveillance sectors. It will instead require vast public-private partnerships between tax- or fee-collecting entities and green energy, transport, health care, and education firms.
Politicians on both sides of the aisle will slam such a vision as dirigiste. But nothing is more redolent of a stale and exhausted state capitalism than the bank---government and security-state---contractor blobs that emerged over the past decade. The question is not whether state capitalism, but which.