Free Future

Is the Security State Mainly Looking Out For Us, Or For Itself? Two Paradigms Compared

By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project at 10:04am

Edward Snowden’s whistleblowing has generated much debate within the United States over whether his leaking of NSA documents was a heroic act or something deserving of punishment. And the NSA activities that he has revealed have similarly generated controversy. I know some very thoughtful people who I see eye-to-eye with on the vast majority of political issues, who nonetheless see this story completely differently from me. They think that the NSA scandal is overblown, and view Snowden with an extremely dubious eye.

I think the reason so many Americans do not see eye-to-eye on these issues is that there are two competing paradigms or ways of interpreting our national security agencies:

  1. Top priority: protecting the nation. Our national security establishment—from the president to the heads of the three-letter agencies to the mid-level officials who make the gears turn—are focused on nothing but trying to protect the nation from harm. While occasional abuses by individual “bad apples” may take place, overall these institutions respect the Constitution and the rule of law and are just doing what they must to protect the nation.
  2. Top priority: protecting themselves. Our national security establishment, while full of well-intentioned people trying their best to protect the nation, should primarily be understood as a giant bureaucratic entity governed by a dynamic that is bigger than the sum of these parts, and as primarily concerned with expanding its own powers and domain and defending its reputation.

The question is which of these two frames is more accurate, more useful, in terms of explaining the known facts. If the former is more accurate, it suggests that we should give these agencies the benefit of the doubt and not worry too much about imposing any restrictions that might impede their efforts to make Americans safer. If the second paradigm is more accurate, it suggests that we need to be skeptical about these agencies’ claims, especially claims that suggest they need more power, and vigilant about the need for checks and balances.

To answer this question, let’s look at certain recent events, what behavior the two models above would predict, and what behavior we have actually seen:

Situation

Paradigm: protecting the nation as #1 goal

Paradigm: protecting themselves as #1 goal

An NSA whistleblower, Thomas Drake, brings allegations of agency corruption and malfeasance to public attention, without releasing any classified information. The president and NSA acknowledge and respond to the allegations, take an honest look at them and whether there are improvements to be made in American security and protecting the American way of life. The whistleblower’s home is raided by the FBI and the government scours his home and the law books searching for a crime with which to charge him. The DOJ pursues serious charges against him and he undergoes a grueling and expensive ordeal fighting the charges, which after several years are revealed to be bogus and are mostly dropped.
Employees of intelligence agencies engage in torture in clear violation of U.S. and international law, doing immeasurable damage to the nation’s image abroad and the rule of law. Saying it is a duty to enforce the rule of law and uphold the nation’s reputation for human rights, the government appoints an independent counsel to determine the precise nature and scope of wrongdoing. Charges are filed and those found to have violated the law are prosecuted. Top officials in the agencies do everything they can to help serve justice. The president says we must “look forward" not "backwards," and declines to name an independent counsel to investigate the officials responsible for these policies. When individual victims of these abuses file suit, the government seeks to have the suits thrown out under a dramatically expansive reading of the “state secrets” privilege.
The New York Times in 2006 reveals the existence of a massive warrantless NSA wiretapping program. The government releases its internal legal opinions to explain why it thought the program was legal, seeks to convince Americans through public defense in court that the program is lawful and necessary, and respects the results of those lawsuits. Possible legal violations are investigated and, where appropriate, prosecuted. The government releases little to no public explanation of the program, and strives to block any litigation by claiming lack of standing and the state secrets privilege. While blocking democratic discussion of these practices, it seeks authority from Congress to continue them as well as retroactive immunity for the participants.
At the urging of the executive branch, Congress passes a law, the FISA Amendments Act, allowing very broad surveillance of Americans’ communications. Many Americans believe that this law violates the Constitution. The government presents arguments in court as to why it believes the surveillance powers are constitutional, recognizing that our courts play the vital role of interpreting the Constitution in our system of checks and balances. The government claims that secrecy requirements prevent the courts from even hearing arguments on whether or not the surveillance is constitutional.
Unknown officials repeatedly leak classified information that puts the government in a positive light. Out of respect for the integrity of the classification system, the government does not treat leaks that make the government look good any differently from those that make it look bad.  No investigations are ever launched, or charges filed, concerning leaks that make the government look good or advance its political goals. 
A young member of the intelligence community, Edward Snowden, leaks documents revealing the existence of a vast NSA domestic spying operation that has been justified by an extremely aggressive stretch of the law, triggering a prolonged national debate over these powers. The authorities treat Snowden evenhandedly and in accordance with some basic principles of fairness. A furious government goes to extreme lengths to get Mr. Snowden, violating diplomatic norms and trampling relations with China, Russia, Bolivia, and other countries in a fierce pursuit of the whistleblower.

 

In every case above, the behavior we actually saw from the government corresponds to that predicted by the self-protection paradigm in the far right column above.

The evidence seems clear: national security is the justification for our security establishment’s existence and powers, but self-preservation, defense of prerogatives and reputation, and expansion of powers is truly mission number one. In fact, as I argued recently, the most useful way to think about the national security state is as a gigantic beast with impulses that need to be carefully controlled. Naïve understandings of our security agencies will lead to inadequate checks and balances. Reforms aimed at reining in these out-of-control agencies must be predicated on a sophisticated understanding of their true character.

Statistics image