Thursday, June 13, 2013

Destroying the Forest In Order to Save It, Civil Liberties Edition

Josh has made a valiant effort to inaugurate our blog the first and only one devoted solely to the recent NSA spying revelations, and I'll keep up the trend a bit longer. Like Josh, I'm quite strongly opposed to the various civil liberties and human rights violating counter-terrorism polices implemented by the Bush and Obama administrations, from general surveillance warrants to torture and drone warfare, but some recent commentary on this latest scandal has also featured  one of my pet peeves in American political writing. This is the extremely widespread tendency among opinion writers to argue against policies that they have no reason to think would be wrong or harmful (and sometimes even concede would be highly beneficial if implemented) by invoking either Americans' or politicians' current views. We can't withdraw from Afghanistan because the memory of 9/11 is too raw for most people to agree, we can't impose significant restrictions on abortion because "our increasingly libertarian culture [won't] allow [] the government power over women’s bodies", and we can't constrain counter-terrorism policy with robust civil liberties and human rights protections because ... given our fear of terrorism, doing so will eventually lead to more terrorism which we'll overreact to with more civil liberties and human rights violations.

No, I'm not making that up; at least two prominent commentators have defended the NSA's mass gathering of metadata on phone calls, and other civil liberties violating counter-terrorism policies, by arguing that they're our best line of defense against infringements on freedom and human rights.

First, New York Times columnist Thomas Friedman:
If there were another 9/11, I fear that 99 percent of Americans would tell their members of Congress: “Do whatever you need to do to, privacy be damned, just make sure this does not happen again.” ... That is why I’ll reluctantly ... trade off the government using data mining to look for suspicious patterns in phone numbers called and e-mail addresses — and then have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress — to prevent a day where, out of fear, we give government a license to look at anyone, any e-mail, any phone call, anywhere, anytime. 
Second, David Simon, the creator of The Wire, in a response to critics of his widely cited piece defending the recently disclosed surveillance, goes beyond civil liberties strictly defined to argue that we need this data gathering to prevent the American people from invading more countries:
In this country, I would argue that the costs of 9-11 were not merely the intervention in Afghanistan, .. but the secondary and much more problematic war of choice in Iraq ... The costs of enduring a large death toll from a massive strike on U.S. soil will not merely be the bodies, but in the demeanor that the U.S. displays in the years to follow.  We ran a fever after 9-11 and it showed in our foreign policy, to the point of great tragedy.  And what might we do after the next major attack, amid another several thousand dead?
So what do I object to about this style of argument (setting aside the application to this particular case, which I'll get back to)? Should political writers remain completely indifferent to what their fellow citizens think about their ideas? Of course not, and there are certain contexts (such as publications aimed at activists or officials) in which arguments like this are completely appropriate.
 However, it strikes me as bizarre and even perverse when writers whose main aim seems to be persuading interested readers of their political views, such as Friedman and Simon (and Ross Douthat and Andrew Sullivan, who I linked to making similar arguments on other issues above), should condition their recommendations on public attitudes in this way. Among its various other problems, there's a sense in which this style of argument is internally incoherent. If your argument for a solution to some problem turns on the idea that it's impossible to get most people to change their beliefs about how to solve it, why bother arguing about it at all?

However, there is a kind of political question where this type of argument seems more appropriate, and thinking about it will bring us to what's problematic about the specific claims Friedman and Simon are making. These are cases in which a particular psychological tendency is so deeply embedded in human nature that politics must find ways of channeling it and leave the task of eliminating or weakening it to religious and social movements. For instance, most of us think concern for others is preferable to selfishness, but we also recognize that ordinary humans' willingness to sacrifice for one another is limited and therefore organize our political and economic order around incentives that purportedly work to harness self-interest for the good of all.

One could interpret Friedman and Simon as saying something similar. Terrorism, they might contend, involves discrete, highly public incidents, and (at least in the context of the terrorism problem faced by the United States) does not occur in a predictable or quantifiable pattern, which means that even the plausible suspicion that a terrorist attack might occur can make it much more difficult to sustain the trust that makes life in an open society possible. Furthermore, the radical Islamists behind most past and attempted terrorism against the United States also justify their actions by invoking an ideology which portrays Americans as profoundly wicked, and this no doubt introduces elements of anger and resentment to our reactions as well. For both these reasons, it is much more difficult to treat terrorism as an ordinary hazard of life in an imperfect world in the way we do for phenomena like car accidents, which claim many fewer lives. Therefore, the argument might go, we can't reasonably expect each other not to demand progressively harsher counter-terrorism measures in response to each new attack and so must treat it as an unalterable background condition when deciding how to deal with the threat. Simon hints at this when he wishes people who share my dim view of his reasoning "good luck with that" and informs us that we're making "an argument for political luftmenschen."

However, it seems to me that, when considered in light of the terrorist threat we actually confront, this line of thought collapses into an argument against the very notions of civil liberties, human rights, or moral constraints on states' use of force. After all, a central element in all of these moral ideas is the thought that societies ought not to use certain effective methods to respond to various forms of violence (such as war and violent crime), all of which tend to share the three features of terrorism which make it especially fearsome (publicity, unpredictability, and tendency to give rise to anger and resentment). It certainly seems plausible that, because of these factors and others, it might be unreasonable to expect people to forgo massive retaliation against especially rampant crime or terrorism or an especially threatening wartime enemy (I personally think Lincoln's unlawful  suspension of habeas corpus at the beginning of the Civil War was legitimate given the serious risk at that point that Confederate forces might isolate Washington from the rest of the Union).

But the actual terrorist threat we face, as Conor Friedersdorf pointed out in an excellent post earlier this week, is quite minor by any historical or comparative standard. Ordinary gun crimes and accidents may affect us less psychologically than terrorism does, but in the decade that included the 9/11 attacks, the number of terrorism deaths was quite literally a rounding error in the context of gun deaths (rounding the CDC's figure of 364,483 dead from guns down to 360,000 eliminates a number of deaths equivalent to the number killed in the attacks on the Twin Towers and the Pentagon). We may sometimes need to suspend civil liberties and human rights protections in the face of extraordinary threats. But if Friedman and Simon really think we need to tolerate a permanent government database containing the times, locations, and participants for all the phone calls we make, which law enforcement and intelligence personnel can search with a warrant from a court whose rulings are secret and does not use an adversarial process, as well as (perhaps - they aren't clear on how far this line of argument is meant to go) the various other abuses the last two administrations have perpetrated, because we'll insist on something worse if we suffer even one more attack? This amounts to saying that contemporary Americans are psychologically incapable of sustaining a free society. As Josh will happily tell you, I'm probably a bit too pessimistic about the national security state, but even I don't think we're that far gone yet.

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