PART II: Oh, Freedom (re: PART I: Westward the course of Empire)

coderman coderman at gmail.com
Thu Oct 31 19:47:45 PDT 2013


Oh, Freedom - Part II

Good afternoon.

Since we were last here the press of the world has been full of
information concerning the practices of the US listeners, and
statements from Presidents, Premieres, Chancellors, and Senators on
the subject.

Our purpose this time being to consider the political meaning of Mr.
Snowden and the future he has brought us, we must begin by discarding
for immediate purposes pretty much everything said by the Presidents,
the Premieres, the Chancellors, and the Senators. It has been a
remarkable display of misdirection and misleading, and outright lying.
We'll come back to it, but it will not serve us at the outset.

It is indeed really what doesn't matter—all this froth, that we've
been reading since we were last together, from the respondents. We
need to keep our eye on the thinking behind Mr. Snowden's
activities—which he has done much more to explain since we were last
together—and we need to understand the message he has sent us. And so,
for that purpose, I come again before you.

What matters most—and what it has been the goal of the Presidents, the
Chancellors, the Premieres, and the Senators not to say—is how deeply
the whole of the human race has been ensnared in this process of
pervasive surveillance that destroys freedom.

The fastening of the procedures of totalitarianism on the human race
is the political subject about which Mr. Snowden has summoned us to an
urgent inquiry. And it is that inquiry which it has been the goal of
pretty much everybody responding on behalf of any Government or State
not just to ignore but to obscure.

We begin therefore where they are determined not to end, with the
question whether any form of democratic self-government, anywhere, is
consistent with the kind of massive, pervasive, surveillance into
which the Unites States government has led not only us but the world.

This should not actually be a complicated inquiry.

For almost everyone who lived through the 20th century—at least its
middle half—the idea that freedom was consistent with the procedures
of totalitarianism was self-evidently false.

Those who fought against it, those who sacrificed their lives to it
and had to begin again as displaced persons and refugees around the
world, and those who suffered under the harrow of it were all
perfectly clear that a society that listens to every telephone call,
spies on every meetings, keeps track of everybody's movements is
incompatible with a scheme of ordered liberty, as Justice Benjamin
Cardozo defined American constitutional freedom.

But at the beginning of the 21st century, what seemed clear and
absolutely unnecessary to inquire into in the 20th is now, apparently,
a question.

So we had better address it directly.

Many millions of people in the United States have in their family
tree, in their genetic material, in their understanding of the world,
visceral awareness of a system that tracked their ancestors'
movements, and for even the most trivial journey required they have a
pass. A system that gave some people the right to scrutinize every
communication of everybody else, that made almost every home subject
to intrusion and disruption at the whim of illegitimate power. For
those who have tasted the bitterness of slavery in their past, it
should not be necessary to explain why powers—however velvet the glove
in which they are contained may be, however invisible the system
within with they are embedded—that keep track, that listen everywhere,
whose intrusion knows no boundaries, are the powers of masters over
slaves.

We should therefore not need to inquire, carrying as we do our own
history closest, whether a system of power which listens everywhere,
which can go everywhere, which keeps track of everybody's thoughts,
feelings, and speech, is inconsistent with freedom. We know, because
we have lived on both sides of such a system. And we know its evil.

But let us forget what we have learned by bitter experience, what we
carry in our own breasts, let us forget it, let us put it aside, let
us be law professors, shall we, and political scientists:

For analytical purposes let us take this word "privacy," that we are
growing accustomed to using quite freely, and see what it really is.

Privacy—as we use the word in our conversations now all around the
world, and particularly when we talk about the net— really means three
things.

The first is secrecy, which our ability to keep messages "private," so
that their content is known only to those who we intend to receive
them.

The second is anonymity, which is our ability to keep our
messages—even when their content is open—obscure as to who has
published them and who is receiving them. It is very important that
anonymity is an interest we can have in both our publishing and our
reading.

The third is autonomy, which is our ability to make our life decisions
free any force which has violated our secrecy or our anonymity.

These three are the principle components of the mixture that we call
"privacy". With respect to each, further consideration shows that it
is a precondition to the order that we call "democracy", "ordered
liberty", "self-government", to the particular scheme that we call in
the United States "constitutional freedom."

Without secrecy, democratic self-government is impossible. Because
people may not discuss public affairs with those they choose,
excluding those with whom they do not wish to converse. If you have
lived in a society where in every dorm room, every work place, every
public transport vehicle, there was an agent, whose job it was to
listen and inform, once you think about the consequences for political
conversation in that neighborhood, you need go no further. If you are
fortunate enough never to have had that experience, most of your
comrades around the world can enlighten you.

Anonymity is necessary for the conduct of democratic politics. The
United States Supreme Court took until 1995 to recognize it, but it
did, and to Justice Stevens we a owe clear statement of the importance
of anonymous political conversation at the core of the First
Amendment. The cases in which the Court has considered the anonymity
right are precisely cases about political communication, central cases
about the exercise of democracy. It is, as Justice Stevens noted in
McIntyre, not terribly surprising that our greatest artifact of divine
constitutional wisdom—a set of political pamphlets penned by three
very slippery characters called Hamilton, Madison, and Jay that we
refer to as The Federalist Papers—were of course published under a
pseudonym.

That autonomy is vitiated by the wholesale invasion of secrecy and
privacy, that free decision making is impossible in a society where
every move is monitored, those of you who have friends in North Korea
may enquire into directly, if you please. But equally, any
conversation with those who lived through 20th century
totalitarianisms or any contact with the realities of American slavery
will surely clear it up for you.

In other words—though it shouldn't be necessary to demonstrate, though
we ought to have taken the bitter experience of American history in
the 19th century and the history of the West in the 20th for
sufficient demonstration—for those who really do like ignoring the
facts and working it out abstractly, with chalk, privacy is a
requirement of democratic self-government. The effort to fasten the
procedures of pervasive surveillance on human society is the
antithesis of liberty.

This is the conversation that all the "Don't listen to my mobile
phone!" has been not about for the last two weeks. If it were up to
power, the conversation would remain at that phony level forever.

So we are, at the moment—thanks to Mr. Snowden, who has precipitated
what even his adversaries now like to call a "necessary
conversation"—we are now in a necessary conversation with parties on
the other side who do not wish to explain exactly what they do. They
have advanced, and will advance, no convincing argument that what they
do is compatible with the morality of freedom, with US constitutional
law, or with the human rights of every person in the world. Indeed,
they will not offer any argument. They will certainly not offer a
defense. They will instead attempt, as much as possible, to change the
subject, and, wherever they cannot change the subject, to blame the
messenger.

But what you have seen around the world in the last two weeks is the
evidence that this is extremely unlikely to work.

And so we need to consider the political environment created by what
has happened, before we can begin to address the more or less empty
rhetoric that has been assigned to the Presidents, the Chancellors,
and the Premieres.

"Why are they all operating in this way," you may ask nonetheless, "as
though everybody were on the same side?"

Here the history is very clear and remarkably available. One does not
need access to classified documents to see—including in records we
will be making public as part of our effort in "Snowden and the
Future" over the next two weeks—how the military and strategic
thinkers in the United States adapted to the end of the Cold War by
planning pervasive surveillance of the world's societies.

In the early 1990's, in documents that are in no way secret, the US
strategic and military planners made clear in a range of fora—from the
think tanks, the Pentagon, in research reports and conference
proceedings—that they foresaw, as indeed we now observe, a world in
which the United States had no significant state adversary, and would
be instead engaged in a series of "asymmetric conflicts." That was the
phrase, meaning "guerrilla wars."

In the course of that redefinition of the US threat assessments and
strategic posture after the end of the cold war, the American military
strategists and their intelligence community colleagues came to regard
American rights in communications privacy as the equivalent of
sanctuary for guerrillas.

The documents from 1992, 1993 are very clear in describing precisely
that relationship. It was understood that in future asymmetric
conflicts the adversaries—that means people, you understand, bad
people committed to bad activity but small groups of individuals
affiliated with and possessing the power of no state—would use
communications facilities that benefited from American civil liberties
as sanctuary, and that it would be necessary for the US military, the
listeners, to go after the "sanctuaries."

Of course, this was the position of military strategists and their
listener colleagues. It was not national policy. But it was an
important albeit relatively quiet part of the policy formation
discussion. There were, however, political adults in the room. And
while the United States government considered various efforts at
improving its ability to listen to encrypted communications in the
mid-90's—the Clinton administration had the Clipper Chip initiative
for example. There were also significant efforts to ensure that
domestic law enforcement would not be disadvantaged by the movement to
digital communications. These lead in 1995 to the CALEA statute
mandating the availability of "wiretapping" technical facilities in
digital telephone systems that didn't natively offer them—a compromise
which split the young Electronic Frontier Foundation into two camps,
one of which became CDT.

Although there were these steps taken to facilitate not only the work
of the domestic law enforcement agencies but also the listeners within
the United States—this we now know, as we see the evolution of the
FISA statute in the FISA court, secret judicature we couldn't see
before—still and all there was a clear understanding. This idea of
denying "sanctuary" by breaching American civil liberties in US-based
communications was not part of the senior policy-making outlook—it was
part of what one team constantly pushed for.

This they did after the first World Trade Center bombing, after the
Africa embassy bombings, after the Cole. The whole pervasive
surveillance system, not just the Patriot Act but all the pieces that
we now understand surrounded it in the secret world's understanding,
were constantly advocated for at the end of the 20th century, and as
constantly rebuffed.

And then, as we saw last time, at the opening of the 21st century a US
Administration which will go down in history infamous for its tendency
to think last and shoot first bought—hook, line, and sinker—the entire
"denying sanctuary," pervasive surveillance, "total information
awareness" scheme. Within a very short time after January 2002, mostly
in secret, they put it all together.

The consequences around the world were remarkably uncontroversial. By
and large, states approved or accepted. Some of this happened because
the United Stated government was even then using quite extraordinary
muscle around the world—after September of 2001 you were either with
us or you were against us. But it also happened because so many other
governments had come to base their national security systems crucially
on cooperation with American listening. And after the declaration of
the new Global War on Terror, that became only more true.

By the time the present Administration had settled into office in the
United States, as one senior official with relevant responsibility
described it to me half-way through the first term, in our government
to government relationships about the Net, "all of us—-the Chinese,
the Europeans, and Us," that was 'all of us' at the table, "—we all
agree about one thing, about exfiltration." (This is the listeners'
word for spying: "exfiltration." They "exfiltrate" data off our
networks into theirwarehouses.) "We all agree," this official said,
"about exfiltration: everybody agrees that it can't be stopped and it
shouldn't be limited. We disagree about what kinds of intervention,"
that is, breaking things in the Net, "should be allowed."

The important point for present purposes in this one conversation
(which could be drawn just as well from many other unclassified
sources) was that senior US policy makers thought there was general
consensus around the world that everybody could listen to everybody's
societies; it could not be stopped it shouldn't be limited. The
Chinese agreed. The US agreed. The Europeans agreed, which really
meant of course that they were dependent on US listening and hadn't a
lot of power to object.

Nobody told the people of the world.

What was common understanding among the policy-making elite—who
governed among them still only about a third of the world's
population—was that global civil society was a free fire zone for
everybody's listeners, and there wasn't anything to be said about
it—particularly not to all those people, who were supposed to not
know.

This is the condition upon which the whistles started to blow all over
the field, as I said last time. Throughout the distressingly
situational ethics of this, a few people—all of them in the English
speaking world, all of the, people who came from societies with strong
traditions of the rule of law, protection for whistle-blowers, some
form of civilian political control over domestic security
intelligence—courageous and indignant whistle-blowers began to speak
up.

Mr. Snowden saw what happened to precedent whistle-blowers, and
behaved accordingly.

What had opened by the end of the first decade of the 21st century was
a gap between what the people of the world thought their rights were
and what their governments had given away in return for intelligence
useful only to thy have adopted a misleading metric; they think if a
program produces anything it is justified.

Because of course the very essence of democracy is that it is for the
people to judge what is justified with respect to invasions of their
entrenched and fortified rights.

And I think that Mr. Snowden means—as certainly I and my comrades
mean—that in the exercise of the democratic discretion to determine
whether we wish to fasten these procedures of totalitarianism on other
people in the world, that we should consider our values as extending
beyond our borders.

We mean—and I think Mr Snowden means with us—that we should make those
decisions not in the narrow, selfish self-interest that is raison
d'etat, but with some heightened moral sense of what it is appropriate
for a beacon of liberty to humanity to do.

We will speak, of course, about American constitutional law and about
the importance of American legal phenomena—rules, protections, rights,
duties—with respect to all of this. But we should be clear that, when
we talk about the American constitutional tradition with respect to
freedom and slavery, we're talking about more than what is written in
the law books.

We face now a global system in which the States have, almost without
exception, agreed complicitiously to deliver over their people to a
form of pervasive spying which we know is incompatible with our own
liberty and with the liberty that we have frequently postured in the
world as bringing to the human race as a whole. We know this. As
individual citizens we are now aware. Mr. Snowden has made it
impossible for us to ignore this fact unless we bury our heads so deep
in the sand that we are likely to suffocate.

But we face two claims—you meet them everywhere you turn—which
summarize the politics against which we are working. One argument
says, "It's hopeless, privacy is gone, why struggle?" The other says,
"I'm not doing anything wrong, why should I care?"

And these—neither one of them a brilliant argument from a political
point of view—these are actually the most significant forms of
opposition that we face in doing what we know we ought to do.

In the first place, the premise of my being here before you is that it
is far from hopeless. Mr. Snowden has described to us, as I told you
last time, what armor still works. Mr. Snowden's purpose was to
explain to us how to distinguish between those forms of network
communication that are hopelessly corrupted and no longer usable,
those that are endangered by a continuing assault on the part of an
agency gone rogue, and those which even with their vast power, all
their wealth, and all their misplaced ambition, conscientious, and
effort, they still cannot break.

Hopelessness is merely what you are supposed to get, not what you have to have.

And so far as the other argument is concerned, we owe it to ourselves
to be quite clear in response. My own personal position I recommend to
my comrades around the world: If we are not doing anything wrong. then
we have a right to resist.

If we are not doing anything wrong, then we have a right to do
everything we can to maintain the traditional balance between us and
power that is listening. We have a right to be obscure. We have a
right to mumble. We have a right to speak languages they do not get.
We have a right to meet when and where and how we please so as to
evade the paddy rollers.

We have an American constitutional tradition against general warrants.
It was formed in the 18th century for good reason. It puts the limit
of the State's ability to search and seize at what you can convince a
neutral magistrate, in a particular situation—about one place, one
time, one thing—is a reasonable use of governmental power.

That principle was dear to the First Congress which put it in the Bill
of Rights, because it was dear to British North Americans, because in
the course of the 18th centuAnd so the constitutional tradition we
should be defending, now, as Americans, is a tradition which extends
far beyond whatever boundary the Fourth Amendment has in space, place,
or time. We should be defending not merely a right to be free from the
oppressive attentions of the national government, not merely fighting
for something embodied in the Due Process Clause of the 14th Amendment
after 1961, because of a trunk of smut left behind by a departing
lodger in Mrs. Mapp's boarding house in Ohio. We should be rather be
fighting against the procedures of totalitarianism because slavery is
wrong; because fastening it on the human race is wrong; because
providing the energy, the money, the technology, the system for
subduing everybody's privacy around the world—for destroying sanctuary
in American freedom of speech—is wrong.

And if we're going to exercise our democratic rights in the United
States as Mr. Snowden wishes us to do—and has given us the most
valuable thing that democratic self-governing people can have, namely
information about what is going on—if we are to do all that, then we
should have clear in our mind the political ideas upon which we ought
to be acting. They are not parochial, or national, or found in the
U.S. Reports alone.

A nation conceived in liberty, and dedicated to the proposition that
all men are created equal, enslaved millions of people. It washed away
that sin in a terrible war We should learn from that, as we are called
upon now to do.

The politics that we have as Americans are slightly more complicated,
but they are fundamentally the same as the lines upon which our
colleagues and comrades around the world must also move. Everywhere
citizens must demand two things of their governments:

In the first place, you have a responsibility, a duty, to protect our
rights by guarding us against the spying of outsiders. Every
government has that responsibility. Every government has the
responsibility to protect the rights of its citizens to be free from
the intrusive spying of outsiders. No government can pretend to
sovereignty and responsibility with respect to its citizens unless it
makes every effort within its power and its means to ensure that
outcome.

In the second place, every government around the world must subject
its domestic listening to the rule of law.

Now this is the tragedy, where the overwhelming arrogance of the
listeners has left the American government. The government of the
United States could have held up its head until the day before
yesterday and said that its listeners, unlike all the other listeners
in the world, were subject to the rule of law. It would have been an
accurate boast.

To be sure the rule of law even in the last generation was somewhat
corrupted by secret judicature, and a court appointed by a single
decision maker, and so on and so on. But the truth is that American
listening was subject to the rule of law as no one else's was in the
world or is now.

For nothing, history will record, they threw that away. For nothing
they threw that away.

But it is true everywhere—whether we are here, or we are in China or
we are in Germany, or we are in Spain, or wherever we are—those two
basic principles of our politics are uniformly applicable: our
government must defend us against pervasive spying by outsiders, and
our government must subject listening to the rule of law at home.

To the citizens of the United States a greater responsibility is given
because we must act to subject our government to control in the
listening it is doing to hundreds of millions and ultimately billions
of people around the world. Ours is the government that is projecting
immensities of power into the destruction in the world's societies and
ours is the government which must be put under democratic control with
respect to that listening. It is our principles in favorem libertatis
which must be the dominant principles in that story.

Freedom has been hunted round the glob war, a Net which no longer uses
surveillance to destroy the privacy that founds democracy.

This is a matter of international public law. In the end this is about
something like prohibiting chemical weapons, or land mines. A matter
of disarmament treaties. A matter of peace enforcement.

Pervasive surveillance of other peoples' societies is wrong and we
must not do it. Our politics, everywhere around the world, are going
to have to be based in the restoration of the morality of freedom,
which it is the job of democracy to do.

The difficulty is that we have not only our good and patriotic fellow
citizens to deal with, for whom an election is a sufficient remedy,
but we have also an immense structure of private surveillance that has
come into existence. a structure which has every right to exist in a
free market but which is now creating ecological disaster from which
governments alone have benefited. From which people have been rendered
far less well off than they think they are, and than they should have
been.

You don't need today's Washington Post on the subject of the massive
interception of information flowing in and out of Google and Yahoo—and
soon it will be Facebook and Microsoft's cloud—as we begin to
understand what government is doing with "the cloud." You don't need
any of that to understand that at the end of the day, we have to
assess not only what the States have done, but also what unregulated
enterprise has done, to the ecology of privacy

We have to consider not only, therefore, what our politics are with
respect to the States but also with respect to the enterprises. This
is the subject of our talk next time.

But for now we are left attending a puppet show in which the people
who are the legitimate objects of international surveillance—namely
politicians, heads of state, military officers, and diplomats—are
yelling and screaming about how they should not be listened to. As
though they were us and had a right to be left alone.

And that, of course, is what they want. They want to confuse us. They
want us to think that they are us—that they're not the people who
allowed this to happen, who cheered it on, who went into to business
with it.

The literature of our time has not been deceptive about this. If one
reads John le Carre's views about the security industry in Germany
under the Global War on Terror (he, as you recall, had his actual
experiences as an intelligence officer on behalf of the British
government in Germany), if you look at what A Most Wanted Man says
about the nature of the cooperation between the Germans and the
Americans, and its effect on freedom, you will discover that after all
everybody really did know—except you.

The purpose of secrecy was to keep you in the dark. The purpose of
secrecy was not to prevent the States from knowing what they were
doing: their left hands and their right hands knew perfectly well what
they were up to.

We're going to have to cope with the problems their deceptions
created. Because among the things that our listeners have destroyed is
the Internet freedom policy of the United States government. They had
a good game that they were playing both sides of. But now we have
comrades and colleagues around the world—working for the freedom of
the Net in dangerous societies—who have depended upon material support
and assistance from the United States government, and who now have
every reason to be worried and to be frightened.

What if the underground railroad had been constantly under efforts of
penetration by the United States government on behalf of slavery?

What if every book for the last five hundred years had been reporting
its readers at headquarters?

People talk about this as though it were a matter of the publicity of
what we publish rather than the destruction of the anonymity of what
we read. We will have to look next time very closely at what
commercial surveillance really does and how it really does it in order
to understand what our politics have to be. Because there, as here,
deception, misdirection—waving the handkerchief over here so you do
not see what the other hand is doing—is the whole secret to how it
works.

The bad news for the people of the world is you were lied to
thoroughly by everybody for nearly twenty years. The good news is that
Mr. Snowden has told you the truth.

But if we really believe that the truth will set us free, we had
better do it now.




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