Espionage Porn and Democratic Platitudes: A Response to Rahul Sagar

I don’t have much to say in reply to Rahul Sagar’s thoughtful response to my January 23 post, “Does Espionage Porn Make Us Stronger?” Much of that is because, although Rahul undersells this in his response, we actually agree on the most important points my initial post sought to make, i.e., that (1) emerging conservative critiques of Snowden, his disclosures, and the Obama Administration’s reactions thereto have been based upon a fundamental conflation of legality and morality; and (2) they also reflect a far deeper failure to understand the true lessons we should have learned from these episodes concerning the breakdown in the basic accommodation Congress reached in the 1970s with regard to oversight and accountability for foreign surveillance activities.

Rahul instead takes issue with my suggestion that the public can indeed benefit from disclosures of hitherto secret foreign intelligence activities that are lawful (what Marc Thiessen has termed “espionage porn”). As he argues, (1) such public “knowledge” will not necessarily have any effect (e.g., by provoking specific reforms); and (2) my reasoning doesn’t allow for the possibility that the public’s will is that certain intelligence activities do remain secret and therefore insulated from public debate. With respect to Rahul’s first point, I fear that he dramatically overreads my post, in which I was at pains to stress that the value of disclosures of “espionage porn” will necessarily be case-specific (and, in most cases, de minimis). All I sought to argue in January was that there will be at least some instances in which public discourse is advanced by disclosures of lawful secret surveillance programs. It’s not clear to me that Rahul actually disagrees with that proposition, at least categorically; rather, we disagree, as reasonable people certainly will, over where the line should be drawn.

But Rahul’s second point merits a slightly lengthier reply:

At its core, Rahul’s “democratic theory” argument is that the current structure of oversight and accountability for secret foreign intelligence surveillance activities manifests the electorate’s (public) political will that these programs be subject to public debate on legal or policy grounds. That is to say, the American people substituted the secret Foreign Intelligence Surveillance Court (FISC) and the congressional intelligence committees for their own public approval. If so, then “espionage porn” actually undermines the democratic values I stressed in my post insofar as it runs counter to the apparent preference of the electorate to keep these programs and their oversight behind closed doors.

As an abstract proposition, I agree entirely with Rahul. Indeed, this was the whole point of the grand bargain manifested in the intelligence reforms of the 1970s: In exchange for having its foreign intelligence surveillance activities placed on far firmer legal footing, the government agreed to subject itself to far greater accountability (before the FISC) and oversight (before the congressional intelligence committees), on the understanding that such oversight and accountability would be secret. And I have no problem accepting, as Rahul clearly does, that the statutes through which these reforms were implemented reflected the democratic will of the American people.

As I explained in my initial post, though, the problem that the Snowden disclosures have illuminated is the extent to which these mechanisms have broken down–not because of malice or nefariousness on the part of the government or its overseers, but because the oversight and accountability mechanisms have never been updated to account for the dramatic changes to the nature and scope of the government’s foreign intelligence surveillance authorities after and in light of the September 11 attacks. Thus, for example, the FISA Court was never intended to handle the kind of judicial review contemplated by section 215 of the PATRIOT Act and section 702 (as added by the FISA Amendments Act of 2008). And whatever role the American people expected congressional oversight to play back in the 1970s, I think it’s safe to say that the current state of intelligence oversight isn’t what we signed up for. In other words, Rahul’s “democratic theory” objection is, in many ways, a manifestation of the very shortcomings I sought to illuminate in my initial post.

Simply put, I agree wholeheartedly that, as a matter of democratic theory, the public can choose to create a secret architecture for accountability and oversight that deliberately takes public debate and decisionmaking out of the loop. But the claim that the public is thereby absolving itself of interest in, and responsibility for, overseeing such programs in perpetuity only holds so long as the architecture functions in the manner in which the public initially intended–as a meaningful substitute for more conventional democratic accountability. Thus, as I wrote back in January, the value of “espionage porn” does not derive from the public’s newfound awareness of specific government programs nearly so much as it derives from these further indications that the 1970s compromise has broken down–and that the time has come for a public debate on whether we need a new architecture for oversight and accountability of secret foreign intelligence surveillance activities going forward. That debate is the one that, as President Obama put it, “will only make us stronger”–and it would not have been possible without at least some espionage porn. 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).