Who Watches the Watchers?–A Rejoinder to Steve Vladeck

I am grateful for Steve’s careful response to my post, “Democratic Platitudes,” which examined his original post, “Does Espionage Porn Make Us Stronger?” Having benefited from the exchange, I want to offer a rejoinder with a view to clarifying our differences.

The first point of clarification concerns the “conservative critics” who have condemned Snowden’s disclosure of lawful intelligence programs. Steve argues that I “undersell” the degree to which he and I agree that these

critiques of Snowden, his disclosures, and the Obama Administration’s reactions thereto have been based upon a fundamental conflation of legality and morality

Now, I agree with Steve that a public official can violate the law in service of morality. But when is such disobedience justified? Steve and I disagree on where to draw the line. In his view, disclosures of lawful programs may, in some instances, be justified by the fact that they advance public discourse. I, on the other hand, argue that lawful intelligence programs should typically not be disclosed, even at the cost of impoverishing public discourse. This is because a democracy may authorize secrecy. Thus, when an official decides to expose lawful programs, he or she effectively usurps the authority we have placed in our representatives.

This reasoning implies that Snowden’s conservative critics are not wrong to equate legality with morality, because exposing an intelligence program that has received democratic sanction violates democracy. Steve evidently accepts this point. He writes:

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 decision-making out of the loop.

If Steve accepts this point, then it seems to me that he should agree with Snowden’s conservative critics that, generally speaking, public officials ought not to expose lawful intelligence programs.

This brings me to the second point of clarification. Though Steve agrees with me that public officials ought not to expose intelligence programs that have received democratic sanction, he believes that Snowden’s disclosures ought to be condoned. What justifies this exception? Steve writes:

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.

I see three problems with this justification for “espionage porn.”

The first is disproportionality. Even if the current oversight architecture is broken, did Snowden really need to reveal all that he has revealed to make this point? Arguably, he did not. This implies that the recent torrent of disclosures might be better attributed to a reckless and self-centered quest for fame, celebrity, and circulation numbers.

A second problem involves, for lack of a better term, democratic miserliness. Steve seems to be assuming that prior generations authorized only the specific forms of surveillance as embodied in FISA. But what about the waves of lawmakers, officials, and judges of varying political affiliations that have overseen FISA’s adaptation to new political and technological realities? Are we to assume that these actors have no democratic legitimacy, and that we must have a national conversation about the contours of surveillance policies every time there is a technological breakthrough or political transformation? How plausible is this requirement given accelerating technological progress and rapid adaptation on the part of America’s targets?

A third problem is regulatory optimism. Put simply, I am not convinced that it is possible to substantially “improve” the existing oversight architecture. Consider, for example, the call for adversarial proceedings before the FISC. I foresee major practical problems, most notably: who will monitor the security clearances of lawyers that prove “difficult”?

Then there is a deeper conceptual point. The quest for a more refined oversight architecture obscures the fact that so long as there is secrecy, someone will need to have the final, unreviewable say on what is done in secret. Adversarial proceedings or not, a FISC judgment will ultimately not be open to public review. So how, then, can we be confident that the relevant judge or bench has correctly weighed both sides? In my view this conundrum implies that we must trust decisionmakers on the basis of something other than public discussion. We might trust them because, for example, we believe that they are honorable people or because they have been carefully chosen or because they have concurred with each other.

If the clarifications outlined above make sense, there continues to be reason to doubt the “public value” of “espionage porn.” Such disclosures are not really necessary to draw public attention to potential oversight failures, and in any case, they cannot eliminate the unreviewable discretion that lies with whoever has the final say on what is kept secret. As a result, all that “espionage porn” accomplishes is to undermine democracy in the name of democracy.

  

About the Author(s)

Rahul Sagar

Associate Professor of Political Science at Yale NUS and Author of "Secrets and Leaks: The Dilemma of State Secrecy" Follow him on Twitter (@rahulsagar).