PART I: Westward the Course of Empire

[coderman]

"Westward the Course of Empire - Part 1"
A talk given by Eben Moglen at Columbia Law School on October 9th, 2013
  http://snowdenandthefuture.info/PartI.html

WebM: https://archive.org/download/20131009SnowdenAndTheFuturePartI_201310/SnowdenAndTheFuture-Part-I.webm

mp4: https://vimeo.com/76656494

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Good afternoon.

There is no introduction. After 26 years in this place it feels
ridiculous to me to pretend that anyone is especially honored by my
presence here.

If I am to be frank about it, I invited myself. Not in the way that
Edward Snowden invited himself to Sheremetyevo Airport. Nor in the way
that Julian Assange invited himself to the Ecuadorian embassy in
London. Surely not in the way that Chelsea Manning invited herself to
35 years in Fort Leavenworth. No, law professor-like I have assigned
myself no onerous duties. I undertook nothing more than to come here
and to tell you the truth.

I don't wish to force my ideas on anybody, but the truth is that I
feel forced to speak myself. No one will remember much of what I have
to say, but of the things about which I came here to speak—both those
that have been done and those that remain to be done—I must say that
they will never be forgotten.

In the third chapter of his History of the Decline and Fall of the
Roman Empire, Edward Gibbon gives two reasons why the slavery into
which the Romans tumbled under Augustus and his successors left them
more wretched than any previous human slavery.

In the first place, Gibbon said, the Romans had carried with them into
slavery the culture of a free people—their language and their
conception of themselves as human beings presupposed freedom. And
thus, Gibbons says, oppressed as they were by the weight of their
corruption and military violence, the Romans yet preserved for a long
time the sentiments, or at least the ideas, of a freeborn people. In
the second place, the empire of the Romans filled all the world, and
when that empire fell into the hands of a single person, the world was
a safe and dreary prison for his enemies. As Gibbon says, to resist
was fatal, and it was impossible to fly.

The power of that Roman Empire rested in its control of
communications. The Mediterranean Sea, which was the transit hub of
every western civilization, was their lake. And across their European
empire, from Scotland to Syria, they pushed the roads—roads that
fifteen centuries later were still primary arteries of European
transportation. Down those roads which, as Gibbon says, rendered every
corner of the Empire pervious to Roman power, the Emperor marched his
armies. But up those roads he gathered his intelligence. Augustus
invented the posts: first for signals intelligence, to move couriers
and messages at the fastest possible speeds; and then for human
intelligence. He created the post-chaises, so that, as Gibbon says,
those who were present when dispatches were written could be
questioned by the Emperor. Using that infrastructure for control of
communications, with respect to everything that involved the
administration of power, the Emperor of the Romans made himself the
best informed human being in the history of the world.

That power eradicated human freedom. "Remember," says Cicero to
Marcellus in exile, "wherever you are, you are equally within of the
power of conqueror."

The empire of the United States, the global empire that followed from
victory in the Second World War, also depended upon control of
communications. Possibly the greatest military lesson of the Second
World War was that he who has access to his adversaries' military
communications prevails. At every level, from the tactical artillery
duel to the greatest strategic naval confrontations in the Pacific,
the new pace of warfare gave victory to the one who knew the other
side's plans first.

This was all the more obviously crucial in the development of the
power to rule the world when, a mere twenty years later, the empire of
the United States was locked in a confrontation of nuclear
annihilation with the Soviet empire—a war of submarines hidden in the
dark below the continents, capable of eradicating human civilization
in less than an hour in an imperial confrontation whose rule of
engagement was "launch on warning." Thus it was that the Empire of the
United States came to have precisely the same view of the effort to
render everywhere pervious to American power that had been the view of
Emperor Augustus. And our listeners aspired to everything.

Now, the structure of listening which came out of the Second World
War—the spying on signals, the stealing of signals and the breaking of
codes—this was, under everybody's understanding of the new order of
power in the world, the crucial center of it all. And, while it has
been commonplace to recognize since the end of the Cold War that the
United States has spent for decades as much on its military might as
all other powers in the world combined, it has not necessarily
followed in people's consciousness that we applied to the stealing of
signals and the breaking of codes a similar proportion of our
diligence.

That system of listening, which had at its center the same reality of
power, that system which grew up under the National Security Act and
its successor legislation in the United States, had a particular
systemic form: listening was under military command, controlling large
civilian workforces. That structure, of course, presupposed precisely
the foreign intelligence nature of the activity. Military control was
both a symbol and a guarantee of the nature of the activity being
pursued: everybody understood that if you had put such activity
domestically under military control you would have violated the
fundamental principle of the civilian control of the government of the
United States.

Instead what we had was a foreign intelligence service regarded as the
most important basis of American power, responsible to the chief
executive of the United States as commander-in-chief, and based in
military control and military integrity. Because, of course, integrity
was the other side of this coin. Military control ensured absolute
command deference with respect to the fundamental principle which made
it all "all right," which was: "No Listening Here." The boundary
between home and away was the boundary between absolutely permissible
and absolutely impermissible—between the world in which those whose
job it is to kill people and break things instead stole signals and
broke codes, and the constitutional system of ordered liberty.

There's lots to be said—and we will need to say it as our time
together goes by—about the morality of that assumption. But I must ask
you to keep in mind that it also was accompanied by the reality of
communications in the twentieth century, which were hierarchically
organized and very often state-controlled. When the United States
Government chose to listen to other governments abroad—to their
militaries, to their diplomatic communications, to their policy-makers
where they could—they were listening in a world of defined targets. As
to which they were roughly entitled to their favored assumption, which
was that everybody else was listening back at them on those targets
pretty much just as hard as they could, which was of course way less
hard than we, because we were the Empire. On this basis, we formed
fundamental alliances with the other English-speaking societies in the
world for a complete cooperation of signals intelligence, based around
two fundamental predicates: the listeners in each of the English
speaking societies were not listening at home, and they were not
spying on one another. Therefore they and we stood back to back in
their listening against the world. And on that basis, in the era of
the digital computer, we began to be capable of taking everything.

"Everything" was defined as all signals in the electromagnetic
spectrum and its copper wire accessories. The basic principle was:
hack, tap, steal—where the roof of every US embassy, and every
American naval asset at sea, and every other place that we could cram
antennas held the ones that we wanted to have there. And where every
deal that we could make for exchange of signals intelligence among
parties committed to listening gave us everything. Thus we could get
what we needed, and we felt we needed it all.

In the beginning we listened to militaries and their governments.
Later we monitored the flow of international trade as far as it
engaged American national security interests.

But there is this about the weapons of war: In 1937, bombing civilian
populations from the air was an innovation in the criminality of war,
and Pablo Picasso found it worthy of his work. Less than a decade
later, dozens of the greatest cities in the world lay in rubble and
United States Government had dropped nuclear weapons on cities in
Japan. Now the United States Government considers aerial bombardment
to be the cleanest form of war.

In the beginning we listened to armies, embassies, diplomats,
government officials. Then we listened to the global economy. Now we
are being told that spying on entire societies is normal.

The regime that we built to defend ourselves against nuclear
annihilation, in a world where access to the other fellow's signals is
what makes victory, came at the end of the twentieth century under two
forms of profound social restructuring. In the first place, the Cold
War ended and the Soviet Union dissolved. An entire establishment of
national security—which continues to absorb more resources in the
United States than in all the rest of the world put together, and I am
including the listeners—an entire national security structure
re-purposed itself, not to spy upon an empire with twenty-five
thousand nuclear weapons pointed down our throats, but at the entire
population of the world in order to locate a few thousand people
minded to various kinds of mass murder.

In the second place, the nature of human communication changed. The
system that they built, with all of its arrangements, was dependent as
I said upon fixed targets: a circuit, a phone number, a license plate,
a locale. The question of capacity was about how many targets you
could simultaneously follow in a world where each of them required
hack, tap, steal. But what happened at the beginning of the
twenty-first century was that we acquired a new way of communicating
in the human race—the beginning of the beginning of the beginning of
the nervous system we are building in which each human being is a
neuron in that great hive-mind called humanity. And from the moment we
began to do that, two things began to fail: the simplicity of "one
target one circuit" went away, and the difference between inside and
outside vanished too.

In particular it vanished in the United States, because so much of the
intelligence of the brain being built for humanity, for better and for
worse, resided here. Therefore the question "do we listen inside?"
came to seem like a question about "are we going to lose the ability
to listen at all?" About which, of course, fundamental doctrine of
national security—whatever "national security" means—had only one
acceptable answer.

Into this mixture, of the structures of the twentieth-century imperial
power and the reality of twenty-first century technology, a vastly
imprudent American administration then intervened.

Whatever else, history will record of them that they didn't think long
before acting. Presented with a national calamity which also
constituted a political opportunity, nothing stood between them and
all the mistakes that haste can make for history to repent at leisure.
And what they did, of course—in secret, with the assistance of judges
chosen by a single man operating in secrecy, and with the connivance
of many decent people who believed themselves to be doing the only
thing that would save the society—was to unchain the listeners from
law.

Not only had circumstances destroyed the simplicity of "no listening
inside," not only had fudging with the Foreign Intelligence
Surveillance Act carried them into the land where law no longer
provided them with useful landmarks, but they wanted to do it—let's be
frank, they wanted to do it. Their view of the nature of human power
was Augustan if not august. They wanted what it is forbidden to wise
people to take unto themselves. And so they fell, and we fell with
them.

Our journalists failed. The New York Times allowed the 2004 election
not to be informed by things that it knew, having made a decision
which, no matter how many Pulitzer prizes it goes on to win, will
always be a pain in our recollections (if not elsewhere).

We failed collectively to show any outrage, because we were afraid. We
did not demand the end at the beginning. And now we're a long way in.
We had our Guernica and we paid little attention. And there weren't
any limits anymore. They were living in an evolving net, with
conscriptable digital brains gathering intelligence on all the human
race for mere purposes of bagatelle and capitalism. So they perverted
those places. And to the network operators we gave legal immunity in
the United States for complicity, thus easing the way further.

Then, there began a revolt inside.

In Hong Kong, during his brief career as a public thinker and
speaker—which I commend to your attention and which we will spend much
time talking about in future times together—in his career as a public
commentator, Edward Snowden said a very straightforward and useful
thing; he said, analysts are not bad people, and they don't want to
think of themselves that way, but they came to calculate that if a
program produced anything useful, then it was justified.

Because, of course, it was not their job to weigh the fundamental
morality. Which is too bad, because the people whose job it was to
weigh the fundamental morality failed more bitterly than we, and our
journalists, and our everybody else.

They fell, and we fell with them, because they refused to accept that
there is a morality of freedom. And it was the people who worked for
them who felt their failure first. So, from the middle of the first
decade of the twenty-first century, people began to blow whistles all
over the field.

Those courageous people sacrificed their careers, frightened
themselves, sometimes suffered personal destruction, to say that there
was something deeply wrong. Later I shall try and show you both how
they came to those conclusions and what they tried to say. But it is
sufficient for the moment to say that what happened back was: Rule By
Fear. It will be sufficient to say that, in their unwisdom, those who
believed in the importance of the listeners and their activities
sought to deal with those who blew the whistle by the harshest
possible treatment.

It is unfortunate to have to dwell on the extent of the failures, once
the morality of freedom was no longer part of their world. Mr. Snowden
said in Hong Kong that he was sacrificing himself—which he knew he was
doing—in order to save the world from a system like this one
constrained only by policy documents. Next time we meet we shall think
long and hard about the political ideas of Edward Snowden—they are
worthy of your respect and your deep consideration. But for now, once
again, it will be sufficient to say that he was not exaggerating the
nature of the difficulty.

Because of Mr. Snowden, we now know that the listeners, in their
aggressive effort to maintain the security of the United States by
breaking anything that stands in the way of listening, undertook to do
what they repeatedly promised respectable opinion in the trade they
would never do.

Systematically, they attempted what they had once and for all promised
many a time in the discreetest but most credible fashion to
respectable opinion, which then carried their water for them
throughout our world. They always said they would not attempt breaking
the crypto which secures the global financial system.

That was false.

When, on September 6th, the New York Times re-entered the pursuit of
journalism in this area so triumphantly, by revealing the existence of
Bull Run, publishing Mr. Snowden's various disclosures concerning both
the substance of Bull Run and the National Security Agency's
discussions of it, we learned that the United States listeners had
been systematically and deliberately trying to subvert the crypto that
holds the international financial system together, for years. And we
learned a good deal more—which we shall spend more time upon on
another evening, considering carefully what we learned in this
respect—we learned that their efforts had been so far only partially
successful.

Within hours they had forfeited respectable opinion around the world,
which had stood solidly in their corner all the way along. The
recklessness of what they had done, and the danger to which it put the
people in the world who don't accept danger from the United States
Government, was breathtaking.

When the morality of freedom is so thoroughly thrown away, it isn't
only the "little people" of the world who suffer, but they do.

The empire of the United States, the one that secured itself by
listening to everything, was the empire of exported liberty. What we
had to offer all around the world was freedom—after colonization,
after European theft, after the forms of twentieth-century horror we
haven't even talked about yet—we offered liberty; we offered freedom.

In the twentieth century we were prepared to sacrifice many of the
world's great cities, and to accept the sacrifice of tens of millions
of human lives, in order to secure our selves against forms of
government we called "totalitarianism," in which the State grew so
powerful and so invasive that it recognized no longer any border of
private life, and brought itself into everything that its subjects
did. Where the State listened to every telephone conversation, and
kept a list of everybody every troublemaker knew.

So let us unfortunately tell the truth as it appeared to the people
who worked in the system: When the morality of freedom was withdrawn,
our State began fastening the procedures of totalitarianism on the
substance of democratic society.

There is no historical precedent for the proposition that the
procedures of totalitarianism are compatible with the system of
enlightened, individual, democratic self-governance. No one has ever
previously in the history of the human race evolved an argument—and as
I will show next time no argument can be evolved—that would give us
any confidence in the ability of the procedures of totalitarianism to
coexist with those of constitutional democratic self-governance. It is
enough to say for now that omnipresent invasive listening creates
fear. And I need not be Justice Brandeis to tell you that fear is the
enemy of reasoned, ordered liberty.

It is, of course, utterly inconsistent with the American ideal to
attempt to fasten the procedures of totalitarianism on American
constitutional self-governance. And this summer many of my dear
colleagues and comrades in our movement have spent much of time in the
United States pointing out that all of this is deeply is inconsistent
with some important American right not to be listened to. Which right
I too have, with them, and believe in deeply. But which it is not my
point primarily to assert just this moment. Partly, as I shall suggest
next time, because freedom is merely privilege extended unless enjoyed
by one and all. But primarily because there is an even deeper
inconsistency between American ideals and the subjection of every
other society on earth to the procedures of totalitarianism.

Freedom hath been hunted round the globe. Asia and Africa have long
expelled her. Europe has been bullied into treating her like a
stranger and England would take her into detention at Heathrow should
she arrive. The President of the United States has ordered everyone
not to receive the fugitive, and to prepare in time an asylum for
humankind.

You see how it works when you rewrite Tom Paine without the morality
of freedom. And so our primary problem right now is that we allowed
them to export slavery to the world. All of which, in one form or
another, became clear, in one mind after another, within the bowels of
the empire and its listeners over the last decade.

William Binney—with whom we shall spend some time along the way—said
in a public speech "I left the NSA because the systems that I built
were turned against you. We had a legitimate charter in foreign
intelligence gathering, but then they went and turned those systems
against you—I didn't mean it, but they did it."

People began to understand within the system that it was being
sustained against democratic order, not with it. Because they knew
that what had come unmoored had come unmoored in the dark, and was
sailing without a flag. They were good people, and they began to
break. And when they broke, the system broke them back. In the end, at
least so far, until tomorrow, there was Mr. Snowden, who saw
everything that happened and watched what happened to the others.

He understood, as Chelsea Manning also always understood, that when
you wear the uniform you consent to the power. He knew his business
very well. Young as he was, as he said in Hong Kong, "I've been a spy
all my life," and I believe him. And so he did what you have to have
great courage to do, wherever you are, in the presence of what you
believe to be radical injustice. He wasn't first, he won't be last,
but he sacrificed his life to tell us things we needed to know.

Edward Snowden committed espionage on behalf of the human race.
Knowing the price, knowing the reason, knowing that it wouldn't be up
to him whether sacrificing his life was worth it.

So I would think that our most important effort, first, is to
understand the message: to understand its context, to understand its
purpose, to know its meaning, and to experience the consequences of
having received the communication.

Others will of course regard the first imperative as being to
eliminate the message, and the messenger, and the meaning: to render
everything as invisible as possible. Because invisibility is where
listeners have to live in order to work. But I think we must let them
go about that business. We must let them try to obliterate the message
as best they can, and do our work, which is the work of understanding
first.

It will be difficult to judge, when you come to the moment where you
consider yourself either entitled or obliged to begin doing so. The
reason that it will be difficult to judge is that there is always much
to say on both sides when someone is greatly right too soon.

In the United States, those who were "premature anti-fascists"
suffered later. It was right to be right when all others were right.
And it was wrong to be right when only the people we didn't want to be
were already there.

I need not explain to you that it is possible to consider a man a
terrorist who tried to do too soon what we took four years and 750,000
lives in order to achieve, namely to free the slaves. And I do not
need to explain to you why it is that Gibbon considered the master key
to the tender respect of Augustus for a free constitution, which he
had destroyed, to be his fear.

The death of Caesar was always before his eyes, says Gibbon, and this
shaped his principles in politics. Augustus was sensible, says Gibbon,
that mankind is ruled by names; and he was not deceived in his
expectation that the Senate and the Romans would submit to slavery, so
long as they were respectfully assured that they kept all their
ancient freedom.

So there are some pieces that we need to put together in order to
understand. In the first place we must see the politics of now, both
as Mr. Snowden saw it, thus bringing us the message we must live with,
and as we see it in ourselves.

We shall consider, next time, the politics of our condition. I shall
suggest to you that it lies in this: if we are not doing anything
wrong, we have a right to resist. The nature of our freedom is that we
lose it because we do not exercise it. And the nature of our freedom
is not necessarily the one we find only in the books of law.

We shall consider two constitutional traditions in the United States
next time. One made by European people running away to be free and one
made by African people, forced into slavery, who had to run away, in
the United States, in order to be free. Two constitutional traditions
of resistance—differently structured and equally in our bones.

Now we must consider the relation that we have to the rest of the
human race in this, and ask ourselves whether we are seeking privilege
or something that belongs to all of humankind. For which it will be
necessary to understand the ideas of those who have risked their lives
to inform us, not because their ideas are necessarily privileged above
our own, but because they have sad experience from which to speak.

We must think about the role of all those working people in the
systems, both private and public, which constitute spying on humanity.
We must ask what they are telling us in their resistance and what our
side in their resistance ought to be. That workers were complaining in
the Gulf last week was making a question for global football. We might
want to be at least equally concerned with what we have learned from
the workers inside the matrix all this while.

We must ask what it means—both in the private and in the public world
of listening and spying and analyzing and concluding—this thing that
we're now calling "privacy," in relation to the thing that we used to
call freedom.

But of course, in the end, all of this would not be worth talking
about here, much less your coming to listen to me talk here, unless we
were going to talk about what we are actually going to do. If the
problem is that we slept too long, then plainly Mr. Snowden did not
come but to wake us up.

We shall see that there are both legal and political forms of
resistance around the world that we must all engage in. And I shall
show next time as best I can the possibilities down which we may
choose to take ourselves in that regard. But we must also change the
way we communicate, so as to restore the balance between what they can
and what they can't do.

Here lies the secret of Mr. Snowden's enormous sacrifice and their
enormous anger. Because the center of what Mr. Snowden has done is to
tell us what armor still works. He has spent his life now for us, to
tell us what we still have time to do if want to restore to the
technology of our communications the morality of freedom.

He has been quite precise. He has been quite careful. He has been most
thorough. He understands his business. He has spied on injustice for
us and he has told us what we needed to know. Despite the efforts
continuing every instant all around us, in a world becoming a safe and
dreary prison for their enemies, he has told us what we require in
order to do the job and get it right. And if we have a responsibility
at all, then part of our responsibility is to learn, now, before
somebody concludes that learning should be prohibited.

Which never happens in a free society.

I wish we weren't here. I don't wish that I wasn't here more than I
wish you weren't here. I wish us all out of this war. Twelve years—the
longest war in history of this society, nowhere concluded, nowhere
near finishing, nowhere capable of being defined as done.

We went from listening to armies and embassies to listening to global
trade and now we are fastening spying on entire societies, with a
skill and energy that only a growing empire can still manage. We shall
talk about the world where a nation of 1.3 billion people gains a
Content Monitoring System in sixteen months, against the ordinary
suppositions of every Indian person who thinks, "they can't do that."
But, thanks to the new Bechtel, Booz Allen Hamilton—erstwhile employer
of one Edward J. Snowden—yes they can.

The procedures—mind you only the procedures—of totalitarianism are a
leading American export these days. I wish we weren't here. I wish
that everything we thought we did in the twentieth century we had
accomplished. I wish we had defeated totalitarianism. I wish we had
eliminated smallpox. I wish that we were growing the Net that we
deserve to have, in which every human brain could learn and every
human being could grow, nourished by the knowledge and the support of
all the others.

There may come a day. But if we have only one more river to cross
before we get to freedom, it's a deep one, and it runs fast the other
way. And those who want to bring us out are going to be called
traitors—they are. And God forbid that they should lift their hands in
anger, or they will be slaughtered. And those who do it will feel they
have all the right on their side.

It is wrong to be right too soon.

It's wrong to be right too soon, but it is not too soon to be right
now. Because if we're not right now, then they will remember our
failure for fifteen centuries. And they will say of us, oppressed by
the weight of our corruption, and our fear of terrorist violence, that
we were ready to submit so long as we were assured that we possessed
our ancient freedoms. And as for everybody else—if not "Civis romanus
sum," then who are you?

Which is no way for us to be talking. Not now, not ever.

We have wandered so far into the dark that we have lost who we are.
Like many a tragic figure in history, Mr. Snowden went further out
into the dark in the hope that he could lead us back.

We had better do our best to learn from him what we can, as we watch
his light vanish into the darkness.