Jul 1, 2015
18 Min read time
If we want to check presidential power—and check it we must—then it is essential that we resist claims to executive secrecy.
Reclaiming Accountability: Transparency, Executive Power, and the U.S. Constitution
University of Chicago Press, $45 (cloth)
As the Obama era comes to a close, two antithetical visions of our government appear before us. Executive power on domestic issues is not merely contained; it is subdued. A curious blend of congressional initiative and intransigence render a domesticated presidency. But we also have caught glimpses of an enormous and largely clandestine national security apparatus. Whereas the president’s ambitions for domestic policymaking are checked fiercely and ceaselessly, Congress either affirmatively protects or passively cedes vast discretionary power to the president on matters of national security.
What explains this disparity, and what can be done about it? In particular, can the formal tools of policy oversight meaningfully constrain the creeping power of the surveillance state or modern ways of warfare? Most constitutional law scholars think so. Through investigations, hearings, audits, and publicity, they argue, Congress and the courts can check executive secrecy.
These scholars are not entirely wrong, but their hopes are exaggerated. Traditional legal reasoning, preoccupied with political checks, has an impoverished view of the nature of modern surveillance and obscures the generative forces behind various forms of public and private resistance to state surveillance.
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A recent argument on this score can be found in University of Minnesota law professor Heidi Kitrosser’s new book Reclaiming Accountability. Kitrosser recommends that we recommit ourselves to the basic constitutional framework for limiting presidential war powers. For Kitrosser, what is at stake in the ongoing contest to limit presidential power is information. Under the guise of protecting the nation’s security, presidents have seized—just as Congress and the courts have ceded—all manner of information about the communications, plans, and travel of citizens and noncitizens alike.
These developments, Kitrosser warns, are not benign. Possessing so much information, the government now wields tremendous power to violate citizens’ rights or to treat them arbitrarily. It is all the more alarming that the very means by which such power is exercised is secret: the Supreme Court’s “state secrets” doctrine means that in many cases, the government may conceal all its information, and all its information about how it acquires its information, from even the most private and protected form of judicial inquiry. We cannot hope to judge whether such risks are warranted if we don’t understand the basics of how, say, the NSA metadata program functions. So, if we want to check presidential power—and check it we must—then it is essential that we resist claims to executive secrecy.
Like many constitutional law scholars before her, Kitrosser steadfastly rejects claims to presidential exclusivity in foreign affairs. She renounces notions of “presidential supremacy,” which stipulate that the president is the final arbiter of the nation’s security interests. (This line of thinking is advanced by people as wide-ranging as UC Berkeley law professor and former Bush lawyer John Yoo and former Supreme Court Justice George Sutherland.) Nor does she find more congenial the “unitary executive theory”—championed especially by Dick Cheney’s legal counsel and chief of staff David Addington—which immunizes executive bureaucracy from judicial or legislative oversight. Both of these outlooks, Kitrosser argues, take a myopic and historically inaccurate view of our system of checks and balances, and both too willingly dismiss the prerequisites for democratic accountability.
Taking a page from James Madison, Kitrosser advances what she calls a “substantive accountability framework,” according to which the adjoining branches of government retain the power to discover what the executive branch is doing—and to stop it, should they so choose. Some measure of presidential secrecy may be warranted, but the Congress, courts, and publics are the proper judges of that warrant’s scope. This framework proposes robust roles for monitoring and checking presidential power, and it looks skeptically upon unreviewable claims made on behalf of executive secrecy.
If we want to check presidential power—and check it we must—then it is essential that we resist claims to executive secrecy.
Kitrosser does not reject arguments for secrecy out of hand. As she puts it, “the government plainly needs to keep some information secret”—if only temporarily. But where competing claims play to a draw, the advantage should always go to transparency. And while plans for military ventures may be kept secret, the details of their subsequent operations should be promptly released and subject to public scrutiny.
What does all this mean in practice? Under Kitrosser’s preferred framework, leakers would receive legal protections. “Rampant” overclassification of state secrets would cease. Congress would appropriate funds for investigative bodies, strengthen its own subpoena powers, and enact more statutes that require information to be publicly accessible. Kitrosser applauds judicial scrutiny of executive claims about information and secrecy, and we expect she would applaud the recently passed USA Freedom Act, a rollback of NSA surveillance power that requires a court order for intelligence agencies to request records, including metadata, from telephone companies.
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We shouldn’t expect presidents to enter willingly into Kitrosser’s compact. Presidents will resist efforts to expand the involvement of Congress and the courts in information gathering. They do not want to shine a bright light on the surveillance state. Nor do they want to broaden the conversation about the kinds of information the government collects and what it does with it. And they can be expected to slip through whatever netting Congress or the courts try to lay.
On this point, Jason Ross Arnold’sSecrecy in the Sunshine Era does a fantastic job of documenting the great lengths to which presidents will go in order to guard their secrets and thereby preserve their power. Like Kitrosser, Arnold has little patience for the corrosive effects of government secrecy. But whereas Kitrosser focuses on foreign policy, Arnold sees executive secrecy everywhere, and whereas Kitrosser hones in on the letter of statutory and constitutional law, Arnold sees presidents and their minions in political motion, ducking and weaving as members of Congress swat at the traces of their policy ambitions.
In the aftermath of Watergate, secretive bombing campaigns in Cambodia, and the many smaller lies and deceptions of the Nixon presidency, members of Congress wanted to restore the nation’s trust in government and sought to usher in a new era of openness and responsibility. In quick succession between 1972 and 1978, Congress enacted a series of laws that established the legal basis for citizens and the press to monitor their government like never before. The Federal Advisory Committee Act defined the functioning of federal advisory committees, emphasizing open meetings, public involvement, and transparency. The Privacy Act of 1974 created protections for the records of individuals held by the federal government. The 1966 Freedom of Information Act was strengthened. The 1976 Government in the Sunshine Act mandated that meetings of public agencies be open to public observation. The Presidential Records Act of 1978 mandated the protection of and public access to presidential records. For a deliberative body riven by partisan divisions and multiple veto points, these statutory accomplishments were nothing less than astounding.
But presidents, Arnold reminds us, had no desire to toil in the light of day for all to see. If Congress longed for an information revolution, presidents responded with policy retrenchment. Rather than bend to Congress’s wishes, subsequent presidents—Democrats and Republicans alike—went to extraordinary lengths to conceal their activities, defy the clear intent of statutory law, suppress scientific information—in short, to circumvent, hedge, and deny at nearly every turn. “A complete history of the era,” Arnold says, “reveals episode after episode of evasive maneuvers, rule bending, clever rhetorical gambits, and outright defiance.”
In their effort to work around the legal architecture of the sunshine era, presidents have not merely lurked in the shadows. Arnold catalogs a multitude of cases in which presidents, long before September 11, 2001, developed formal procedures with the express intent of evading the watchful eyes of Congress and the courts. Presidents have repeatedly asserted the authority to classify information that, by all rights, ought to be the subject of public deliberation. Through national security directives and Office of Legal Counsel memos, they have propagated secret laws that are not subject to the checks that Madison and his intellectual descendants considered so vital.
But presidents, Arnold reminds us, had no desire to toil in the light of day for all to see.
Some of Arnold’s examples are well known, such as Dick Cheney’s refusal to publicly reveal the members of his 2001 energy commission, a clear violation of the Federal Advisory Committee Act. Arnold also documents the efforts of successive presidential administrations to hide the fallout of Agent Orange on Vietnam veterans. And when the Iran-Contra scandal began to reach fever pitch, henchmen in the Reagan administration shredded massive amounts of potentially damning evidence about the plot to divert funds from the illegal sale of armaments in order to fund a Nicaraguan insurgency—against Congress’s explicit instructions.
The most illuminating chapters in Arnold’s book focus on the secret funding of scientific endeavors, the results of which were concealed for years. Under the guise of protecting national security, executive agencies hid evidence about how antibiotic-resistant bacteria from Midwestern hog farms spread. Arnold reports on the Environmental Protection Agency’s efforts to conceal information about asbestos levels in the dust spread over lower Manhattan when the Twin Towers fell. And the history of climate science is riddled with cases of executive meddling, concealment, and gross distortions.
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Arnold’s analysis of executive branch secrecy might appear to bolster Kitrosser’s case for the importance of transparency reforms, suggesting that we are due for a new sunshine era, one that cleans up the law in the face of these presidential machinations.
But Arnold’s study also challenges the power of Kitrosser’s program of accountability based on checking. While the transparency achievements of the 1970s were significant, the foreign threats and modes of military organization that define our contemporary security environment create vast new challenges and opportunities that cannot be apprehended within the checking framework endemic in legal studies.
Think about the extraordinary challenges associated with checking the executive branch’s cyberwars in which lines of code stand in for troop deployments. The 2010 Stuxnet worm, which derailed the Iranian nuclear program in 2010, serves as just one example of the many strategic uses of computer malware. The objectives of these wars are not so much laying waste to towns and villages as corrupting the computer systems that supply nuclear power programs and shut down electrical grids. The fingerprints of nations, much less agencies or individuals, that commit these acts are difficult to identify. By these reference points, the statutory framework for war making established by the War Powers Resolutions seems positively quaint.
Consider too the development of new computing systems underwriting the surveillance state. Like most legal scholars, Kitrosser focuses her attention on the kinds of information the federal government can collect and the purposes to which this information can be put. But she does not adequately grapple with the sheer size and breadth of the new capacities that underlie the collection and analysis of information. As Arnold reports, the Department of Defense is working on a “global information grid” with the power to store and process “possibly yottabytes” of data—that is, 1024 bytes, or 100,000 gigabytes, which amounts to 500 quintillion pages of text.
An apparatus of this scale presents a dazzling array of opportunities for mischief. It is as if the government has created an unimaginably large game of Whack-a-Mole: while checking may be an effective way to suppress one troubling program, the existence of this grid will create constant opportunities for new information gathering regimes. For example, although President Barack Obama openly supported the recent restrictions on the NSA implemented by the 2015 Freedom Act, other legislation provides opportunities for him and his successors to continue collecting such data. Through FISA legislation (the legal basis for PRISM and other surveillance and data programs) and Executive Order 12333 (which provides authority for NSA foreign surveillance, and may encompass domestic communications data that travel outside the U.S), presidents will be able to continue programs of mass surveillance despite the Freedom Act—a fact lamented by stalwart critics such as Rand Paul.
Moreover, Kitrosser’s framework may call in vain upon legislators and judges to exert independence and oversight they would just as soon disavow. The FISA Court’s record of granting 99 percent or more of the warrants that the government requests—including, according to a Snowden leak, permitting the NSA to compel a Verizon company to turn over daily information on every phone call made, foreign or domestic—demonstrates that courts may be only too willing to cooperate with the executive.
But even if we wave these challenges away, Kitrosser, like most accountability theorists, still comes up short. She understates the essential problems presented by modern surveillance, just as she oversells her preferred antidotes.
A field-defining legal view of presidential war powers is that government programs constitute the subjects of political contestation, which, by means of elections and judicial and legislative oversight, is able to reach and alter decisively the developmental pathways of security politics. But this is a stunted view of the dynamics of power and technology. The very fact that our government amasses vast troves of information about our conduct is itself a form of power. In this sense, the relevant question is not how information is put to use in order to advance one government objective or another. Even if this information is forever sealed from view, the very existence of the surveillance apparatus exerts an insidious form of power that neither Congress nor the judiciary is capable of containing.
One way this power reveals itself is by so-called “chilling effects.” Citizens come to see themselves as the subjects of surveillance: knowing the government could be watching or listening, they self-censor. Some may purchase encryption software and demand that the places where they do business protect their personal and financial identities. To the great concern of the FBI, Apple and Google are developing new encryption technologies for smartphones. At the same time, if the public revelation of government-private collaborations such as the PRISMprogram gives any suggestion of more to come, Google and others are likely involved in surveillance practices that have not yet even been disclosed. The development of new businesses and new professionals with expertise in managing security and privacy is, in turn, transforming important dimensions of economic activity—altering the relationships between customers and business, between businesses themselves, and between business and government.
Consider too the development of new professional competencies associated with the management of a “global information grid,” drone surveillance, or the maintenance of secret prison networks and torture practices within those settings. The development of professional competencies associated with these programs—for example, the involvement of the psychiatric profession, and even of the American Psychological Association, in coordinating torture policy—will continue to exert influence even after particular torture programs have been shut down. Once the state has engineered a massive technological transformation, it creates and molds new identities among both the implementers and the objects of the technology.
The normalization of surveillance brought about by the simple revelation that the NSA is collecting metadata also generates new expectations for security. In the event of another terrorist attack, politicians will almost certainly ask whether the NSA’s information technologies could have informed elites about impending threats; and if so, why those technologies were not used more effectively. Now that the public has become accustomed to drone warfare, it is hard to imagine any politician selling the public on an optional policy of boots-on-the-ground warfare, even if such warfare were associated with fewer innocent casualties; the expectation has been set that the United States ought to be able to go to war without suffering deaths. The state’s development of new technologies, programs, and identities creates new possibilities for exploitation and new expectations for security that will tend to resist or overwhelm efforts to rein in any particular program.
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Congress, the judiciary, and the media occasionally reveal and duly punish individuals who use security information for ill. Secret wiretapping programs can be found out, and the culprits sometimes suffer political and criminal penalties. Our argument that accumulating information itself represents an unconstitutional intrusion into Americans’ expectations of privacy can certainly be understood in legal terms: the litigants in the ongoing case Jewel et al. v. NSA, for instance, make precisely this claim. So the institutions that adjoin and surround the security state do still play an important role in checking power, much as Kitrosser envisions.
We cannot roll back the clock to a time when the government didn’t have vast troves of information.
But the power that flows in a surveillance state is not so easily manipulated or contained by political or legal checking. The very existence of this apparatus, after all, transforms our understanding of the purposes of government, the appropriate boundaries of political authority, the capacities and obligations of the state, and the duties individuals owe to their government.
A checking power is not the same as an undoing power. By checking, energies put to one use may be either blocked or redirected to another. But checking does not recover a state of the world that existed prior to its exercise. The checking power of Congress and the courts, in this way, is not so much overmatched as rendered obsolete. For all the hearings they hold, the laws they enact, the investigations they launch, and the rulings they issue, the legislative and judicial branches cannot roll back the clock to a time when the federal government didn’t have vast troves of information; when it didn’t have the capacity to collect or process such information; and when it didn’t have technologies that allow soldiers to wage war with computer code. As a consequence, it—and we—may be bulldozing barriers while tectonic plates shift beneath us.
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What more can we do besides what Kitrosser proposes? To begin, we must broaden our perspective beyond the usual suspects. It is not only Congress and the courts that are implicated in mass surveillance, but also businesses, communities, activist organizations, and everyday individuals. All have roles to play.
Moreover, there is more to be done than merely checking.We refer to deeper, more diffuse, more creative activities that the social scientist James Scott calls “the arts of resistance.” These arts assume a variety of forms. We resist surveillance, most basically, when we remove ourselves from the state’s gaze and from accountability to state priorities. Through encrypted cell phones and computer usage, individuals and activist groups shield their communications from view. Companies protect and conceal information they have about their customers.
Deviance too can be a form of resistance. Political scientist Cathy Cohen has characterized a “politics of deviance” through which individuals accept limited agency in pursuit of limited autonomy. Cohen and Scott find these phenomena at work in marginalized communities, who have generated creative strategies of self-definition and association in response to oppressive and conformist influences in politics and society. The politics of deviance represents a resource for thinking through the appropriate forces of resistance to the security state. The person who refuses to file taxes or respond to Census Bureau queries makes it all the more difficult for the state to monitor its population, as does the driver who refuses to get a license or the recent immigrant who does everything she can to avoid the state’s detection. When such dissidents form networks of their own, they may create—intentionally or not—“counterpublics,” a concept employed by a number of political theorists to describe how marginal or subordinated groups can communicate below or outside the gaze of the public in order to develop alternative, and at times oppositional, understandings of their identities, capacities, wants, and needs.
Resistance takes other forms as well, such as infiltration. Hacker groups such as Anonymous, LulzSec, and Operation AntiSec attempt to dismantle modes of surveillance—along with other forces to which they object—not by lobbying for their abolition but by surreptitiously entering and then disrupting their operations. The organizational structures of these groups mirror those of terrorist insurgencies; Anonymous is ideologically leaderless and cooperative rather than institutionalized into a formal hierarchy. And these groups do not operate to “check” the extensions of power to which they object: they do not block government power so much as point toward a vision of a more anarchic political order. Just as Chelsea Manning’s leaks transformed public discourse on security regardless of her conviction for aiding the enemy, so too do Anonymous’s political actions create effects that are not delimited by subsequent government prosecution, criminal or otherwise.
Resistance also involves the democratization of surveillance itself. Citizens may redirect surveillance by casting gazes of their own—through videos of police officers caught on cell phones, for example, and through investigating the specific ways by which the state collects and uses information.
In these ways, we see how resistance, then, is a more capacious category than checking. Whereas checking seeks to block, amend, and negate government programs, resistance draws upon creative impulses. The vision program of “checking” power, as such, does not account for the ways that the tools of resistance create new communities, practices, expectations, identities, and commitments—some of them stirring and beautiful, like the subversive voices for democratic liberties that communicate with one another under authoritarian regimes or Anonymous’s campaigns against ISIS propaganda and personnel; and others vile and destructive, like the “dark web” that offers haven not only for pro-democracy organizers, but also for weapons smugglers and child pornographers. And checking alone does not reveal what is distinctive about either surveillance or the larger class of people who resist it and the activities that disrupt it.
Coming to terms with the new security state requires that we ask what new forms of organization, identities, political possibilities, and material resources are being created. On what new foundations is our new security age being erected? Answering that question is the challenge at hand, and it is a challenge that prevailing modes of legal reasoning fail to meet.
July 01, 2015
18 Min read time