The BuzzTNI's Daily Media Monitor
At Lawfare, Jack Goldsmith has a short post this morning following up on a much longer one from May about the question of how far the Authorization for the Use of Military Force (AUMF) can be stretched. The original post followed a May congressional hearing in which Defense Department officials appeared to endorse an extremely broad reading of the AUMF that would allow the government to use force against Al Qaeda-associated groups in Mali, Libya and Syria. As Goldsmith wrote in May, the hearing made it “plain that the AUMF-war is much broader and much more easily expandable” than was previously believed, and that the Senate Armed Services Committee “has no idea how DOD is interpreting the AUMF.”
At the hearing, Senator Carl Levin asked the administration to provide the committee with an “existing list of groups that are affiliated with al Qaeda” and to let the committee know when changes are made to the list, and the witnesses promised to do so. Today, Goldsmith tells us:
I have it on reliable authority that DOD has responded to Levin’s request, albeit in a classified fashion. Apparently DOD answered numerous questions for the record by committee members, and some of the answers (the unclassified ones) will be released with the official print of the hearing transcript (which apparently has not yet been released).
This is, in some sense, a limited piece of good news. But it’s also a sign of just how bizarre it is that up until recently, the Senate committee responsible for overseeing the Defense Department did not know exactly which organizations the administration believed it had the legal authority to target. It’s hard to think of a better example to illustrate former senator Jim Webb’s thesis, argued in a recent cover essay in TNI, that Congress has become increasingly irrelevant to the making and functioning of the country’s foreign policy.
At this point, it is unclear if this list will be among the items declassified and made public. As Goldsmith argued in May, it should be. In his words, “It should not be a surprise to the American people . . . where and against whom Congress has authorized the President to use military force.” The fact that this even needs saying is remarkable. To argue that this list should stay classified, you have to believe that the U.S. public either should not know or does not need to know who its government considers itself to be at war with. Either assertion makes a mockery of even the possibility of democratic accountability when it comes to matters of war and peace.
The Working Group on the Responsibility to Protect, a panel of impressive foreign-policy figures convened jointly by the U.S. Institute of Peace, the Brookings Institution and the U.S. Holocaust Memorial Museum, has just released its final report to much fanfare. The document, “The United States and R2P: From Words to Action,” is a robust long-form exegesis and defense of the R2P concept; given the rise of R2P proponents within the Obama administration of late, it is well timed and deserves examination. Former secretary of state Madeleine Albright and former presidential envoy to Sudan Richard Williamson attempt to ease critics’ worries that R2P is a recipe for endless American “police actions” divorced from core U.S. interests. Yet this is a straw man, and they fail to address R2P’s real problem—its disregard for national sovereignty, which gives it potential to create, rather than ease, instability.
The Responsibility to Protect concept is rather simple, resting on three pillars: first, states bear “primary responsibility” for keeping their populations safe from atrocities; second, the international community has a responsibility to “assist and encourage” states to provide such protection; third, if a state fails to provide protection, or actively attacks its own people, the international community has a responsibility to take action. The second pillar means that the R2P concept isn’t necessarily tied to military intervention. Preventing atrocities can include helping to ease societal tensions long before violence breaks out—and, the authors note, such precrisis action is both more effective and more politically feasible than sending in ground troops once a conflict has broken out. And as the authors note, preventing atrocities can often be in U.S. interests, for such cataclysmic social disruptions can create lasting instability; why not do it preventively and proactively?
The third pillar is where the rub is. The notion that the international community has an obligation to become involved in a country under certain circumstances, regardless of what its government says, appears to erode national sovereignty. Albright and Williamson charge that this is a misperception—in fact, they say, R2P “is designed to reinforce, not undermine, national sovereignty. It places primary emphasis on the duty of states to protect their own people and its complementary focus on helping governments improve their capacities to fulfill their commitments.” In other words, R2P expands the concept of sovereignty—sovereignty includes not only rights, but also responsibilities, responsibilities which states should help each other fulfill. Sovereignty here is so sacrosanct that states failing to exercise it fully lose their title to it—“Only when a government fails or refuses to live up to the responsibility of sovereignty does it run the risk of outside intervention.”
Yet this is a curious way to construe sovereignty. Sovereignty becomes not merely an empirical fact about states that is prudently respected, but a right entrusted from on high; given that the right passes to the international community when abused, it would seem this sovereignty sees the world as a federation. International institutions—treated in the report as the final authorities on third-pillar actions—graciously devolve their responsibilities to local viceroys and governors-general, whom it may relieve of their duties if their failures are severe enough. It’s not really sovereignty, then—it’s mere administrative convenience.
Albright and Williamson might reply that all these worries repeat the error of assuming that R2P is mainly about its third pillar, when in fact “R2P is at its core an instrument of prevention. It does not mandate military action by the United States or others. The idea is to generate preventive diplomacy, increased development aid, sanctions, and other tools to avoid the military options that might be necessary when prevention fails and atrocities commence.” The second pillar, for them, bears the most weight.
Yet the way Albright and Williamson envision this pillar working is also a threat to sovereignty. They imply this in the Politico op-ed they released to plug the report, as they note that “Syria today presents us with a stark reminder of the high human costs of equivocation. As Assad began to turn state organs into his own tool of repression, R2P’s preventive underpinnings were rightfully called into question...” Indeed. No preventive action could have kept Assad from turning the state’s institutions into tools of repression while also respecting Syrian sovereignty, because Assad’s rule was already repressive. As in most autocracies, the government could not become less repressive without endangering its continued hold on power. Assad was thus likely to regard the second-pillar efforts that would have been necessary to stabilize prewar Syria as a threat, and to refuse them. (Indeed, other autocracies, such as Russia and Egypt, have similarly refused such “help.”) So should these second-pillar measures be conducted over a government’s objections? If not, they’ll often be insufficient; if so, sovereignty is further eroded. Yet Albright and Williamson pass over this problem in silence.
Why is R2P’s gutting of national sovereignty a problem? Respect for sovereignty is generally a stabilizing force in the international community. It narrows the scope of acceptable disagreement between states—there are fewer things to fight about. This can lead, in turn, to fewer international armed conflicts—and fewer of their attendant atrocities. R2P’s disregard for sovereignty might empower the international community to, from time to time, actually stop a genocide by intervention. Yet all too often, no “international community” exists. Interventions can become proxy conflicts (this would happen in a Syria intervention, and was a danger in the Balkans). And these proxy conflicts can readily yield atrocities of their own, perhaps far worse than those the intervention was launched to prevent.
The R2P concept of sovereignty can also give bad actors like Assad perverse incentives. A case in point is threats to bring those behind atrocities before international courts—threats made in Albright and Williamson’s report. Assad is hardly more likely to seek peace and step down if he thinks that might see him brought before the International Criminal Court and thrown in prison for decades. Such a risk is all the more reason to hang on desperately—and to keep inflicting horrors on his people. Second-pillar actions, too, could make him more troublesome. If the international community insists that states accept outside efforts to change their politics, autocracies will have incentives to resist the international community; those within autocratic regimes who benefit from their positions have incentives to spoil the deal. And the resistance can be quite destructive, endangering international stability and even causing atrocities. Iran’s support for terrorist groups and sectarian militias throughout the Middle East may be driven in part by this dynamic.
Of course, second-pillar actions that do respect national sovereignty can do a great deal of good, as so many successful efforts by international and nongovernmental organizations attest. And violations of other nations’ sovereignty can sometimes be vital to American security. Albright and Williamson’s are quite conscious of all that. What’s alarming is that they don’t seem to realize that there are trade-offs to be made and balances to be weighed. Breaches of sovereignty anger other nations and give them reason to take action against the United States. They must thus be employed with utmost care, in defense of vital U.S. interests. Atrocity prevention and other humanitarian causes rarely rise to that level.
Image: Flickr/Dun_Deagh. CC BY-SA 2.0.
At the Washington Post’s “Plum Line” blog, Greg Sargent discusses some of the responses in Congress to the recent revelations regarding the National Security Agency and the FISA court, and makes a great point:
What continues to remain striking is that, for all the intense media attention to the NSA story, almost no attention has been given to efforts such as these that would actually do something about the problem, or at least one important dimension of the problem.
There are three explanations for this. First, the drama that has played out with Edward Snowden, from his flight to Hong Kong to his current state of limbo in the Moscow airport, is undeniably fascinating. It is hardly surprising that people find the story interesting and that it is eating up a ton of media oxygen. Second, many in both parties are simply not bothered by the substance of what has been disclosed. Senator Dianne Feinstein put it most starkly the day after the Guardian first reported on the NSA’s bulk collection of metadata when she dismissed criticism of the programs by saying that “It’s called protecting America.” And the third reason, as Sargent notes, is that the suggested policy fixes “have little chance of going anywhere” in Congress.
Nevertheless, Sargent is right that the efforts in Congress to roll back some of the secrecy surrounding the NSA and the FISA court deserve both more attention and more support. He calls attention to a series of proposals that have been made, of which one is particularly noteworthy. Last month, a group of eight senators, led by Democrat Jeff Merkley and Republican Mike Lee, introduced a bill that would require the declassification of the FISA court’s opinions that provide the legal basis for the extent of the NSA’s surveillance. As the New York Times reported recently, the court, which was “was once mostly focused on approving case-by-case wiretapping orders,” has now “become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.” In doing so, it has dramatically expanded the scope of legalized surveillance—in part, the Wall Street Journal revealed, by redefining the word “relevant” to encompass databases of “records on millions of people” rather than more individualized requests.
As Ron Wyden, another of the eight senators, said, “It is impossible for the American people to have an informed public debate about laws that are interpreted, enforced, and adjudicated in complete secrecy.” Indeed, it is clear now that the FISA court’s interpretation of the law is markedly different from what members of Congress understood themselves to be voting for when they reauthorized the Patriot Act in 2006. Hence, the senators’ push to declassify the rulings is a welcome one. Whether or not one believes that the NSA’s dragnet-style collection of metadata is in America’s best interest, the idea that it ought to have continued forever without public knowledge and justified only by a secret body of legal rulings, is pretty much indefensible.
In a muscular 2004 article in these spaces, Harvard social scientist Samuel P. Huntington warned of a “denationalization of the American elite.” He noted a growing gap between the vast majority of the American public and its intellectual, political, and economic leaders. While ordinary people held strong patriotic attitudes, favored the general preservation of American culture and identity, and wanted protection of American jobs to be a high priority for the government. Yet at the top of society,
these concerns are secondary to participating in the global economy, supporting international trade and migration, strengthening international institutions, promoting American values abroad, and encouraging minority identities and cultures at home. The central distinction between the public and elites is...nationalism versus cosmopolitanism.
Huntington reserved most of his ire for the influence of the cosmopolitan elite on the government, warning that policy had diverged so much from public preference that it had created “an unrepresentative democracy,” with attendant costs for the public’s faith in the political system. But he also noted “an emerging global superclass” of “Davos men” or “economic transnationals,” consisting of
executives of multinational corporations, large NGOs, and comparable organizations operating on a global basis and . . . individuals with skills, usually of a highly technical nature, for which there is a global demand and who are thus able to pursue careers moving from country to country.
The Davos men have made their living off the globalization of the world economy. They call Berlin in the morning and teleconference with Beijing in the evening. They trade in Indonesian coffee from Chicago or insure Panamanian ships from London. They work for multinational companies headquartered in New York or Paris, but with assets across the globe, companies that answer to no higher sovereigns than the share price and the board of directors. When your livelihood is everywhere, your home can be anywhere—and can be halfway around the world next week if needed. And so they
have little need for national loyalty, view national boundaries as obstacles that thankfully are vanishing, and see national governments as residues from the past whose only useful function is to facilitate the elite's global operations. In the coming years, one corporation executive confidently predicted, "the only people who will care about national boundaries are politicians."
The quintessential Davos man was Marc Rich. Born in Belgium, which he left for the United States to escape the Nazis, he revolutionized the world trade in commodities. Markets emerged where none had existed—most consequentially, for oil. Breaking the grip of the big producers required creativity, both in business and in law. He carried out transactions that a more nationalistic—or merely more ethical—trader would have spurned. As the Economist notes in its obituary,
Mr Rich found his way round any political or moral obstacle. He sold Soviet oil to apartheid South Africa, despite a UN embargo, and between 1979 and 1994 made profits of around $2 billion there. He sent Soviet and Venezuelan oil to Cuba in exchange for sugar, ignoring America’s ban on trade. He sold on the global market surplus Iranian oil that had flowed to Israel down a secret pipeline, and kept the arrangement going seamlessly despite the Iranian revolution of 1979, another embargo, and the American hostage crisis.... He was soon the world’s largest independent oil-trader, with a turnover in 1980 of $15 billion.
Such practices angered U.S. authorities, who eventually caught up with him.
In 1980-81 he violated America’s domestic oil-price controls by relabelling Texas crude from old fields as new-found, jacking up the price by as much as 400%. He made profits of $105m and shipped them abroad, avoiding taxes of $48m. Once federal prosecutors were after him for that, they charged him with 64 other crimes, including racketeering and “trading with the enemy”. In 1983 he fled to Switzerland with his family, having also tried to spirit away two trunks of subpoenaed business papers.
Yet for a Davos man, prosecution in your home country need not be the end. Other identities, other markets and other opportunities beckon.
He remained—until 1994, when he sold his stake and his company became the vast, tentacular Glencore—the world’s biggest trader of metals and minerals, while darting between Spain, Switzerland and Israel, a citizen of all three. In Marbella or St Moritz, beside a $9.5m swimming pool or among his Braques and Picassos, with a fortune estimated at $2.5 billion, he reconciled himself to exile.
This made Rich a test case for the power of the elite transnational identity. Is the pull of globalization so strong, the joy of wealth so overwhelming, that a man can abandon his home entirely? The Economist’s obit suggested that for Rich, the loss of nationality had been painful, but bearable: “You cry a little, you move on.” This prompted a letter to the editor from R. James Breiding, an author and businessman, himself a dual citizen of Switzerland and the United States:
I met Marc Rich shortly before his death . . . It was a broken man who told me that “I have failed in the things that I have valued most.”...He could not attend the funeral in America of his daughter when she died in 1996 because he was a fugitive.... And yes, he had to say kaddish down the telephone to his dying father. The cause of Marc Rich’s death may have been a stroke, but to those close to him it was said that he died of a broken heart.
Denationalization kept Marc Rich from spending the rest of his life in federal prison. Yet it destroyed him nonetheless. His exile is a cautionary tale for those elites who may think that a global economy makes global citizenship possible, that places are not a vital part of who we are. Rich had fabulous wealth and lived like a prince. Yet all of us are tied to the places from which we come. Rich’s money could fly in any friend or family member he wanted to see. But their homes would always pull them back, away from him. Only a few will ever be able to live the global life of the Davos man. Cosmopolitanism has many rewards. But there’s no place like home.
As some had speculated, Liz Cheney, daughter of the former vice president, announced yesterday that she would run for the Senate in Wyoming in 2014, challenging incumbent Mike Enzi. Daniel Larison dubs this “possibly the most pointless primary challenge ever”:
The obvious flaw in Cheney’s challenge is that Enzi has done nothing to anger voters in Wyoming or conservatives nationally. Other than trying to re-establish the Cheney family in Wyoming politics, her candidacy serves no purpose. . . . Except for her hard-line foreign policy advocacy, Cheney doesn’t have much to offer Wyoming voters, so it’s not clear why they would chuck out a popular incumbent to make way for her.
It’s true that, on an issue-by-issue basis, one shouldn’t expect too much daylight between the two candidates. As Chris Cillizza and Sean Sullivan note, “It seems unlikely that Cheney will gain much traction by casting Enzi as insufficiently conservative,” given that Enzi “was the 8th most conservative senator in 2012, according to National Journal’s vote ratings and has a 93 lifetime rating from the American Conservative Union.”
What seems clear is that the logic for this challenge isn’t based so much on a single issue or set of issues as it is on a general approach to both governing and foreign policy. In her video announcing her campaign, Cheney did not mention Enzi by name, but she did say this: “Instead of cutting deals with the president’s liberal allies, we should be opposing them every step of the way.” The promise is that if elected, Cheney would be even more vocal and aggressive in her reflexive opposition to all elements of the president’s agenda.
Meanwhile, as the debate over the GOP’s foreign-policy future continues, there is no doubt where Cheney would stand in the divide between the neoconservatives and the more noninterventionist wing. As Jacob Heilbrunn observed here at TNI last week, she has served as a sort of custodian of her father’s reputation, defending the Bush-Cheney foreign-policy legacy and excoriating President Obama for his supposed weakness overseas. She has accused Obama of “working to pre-emptively disarm the United States” and said that he is “unwilling to go after the terrorists that are threatening the nation”—an odd line of attack given the administration’s rather aggressive approach to counterterrorism over its first term. According to her, “Apologizing for America, appeasing our enemies, abandoning our allies and slashing our military are the hallmarks of Mr. Obama's foreign policy.”
In short, if you believe that the Republican Party’s principal problem lately is that it has been too accommodating and ready to compromise, Liz Cheney is your candidate. Likewise, if you believe that the principal problem in American foreign policy today is that the country hasn’t been willing enough to employ military force overseas, Liz Cheney is your candidate. Whether or not this wins her a Senate seat in Wyoming, given where national public opinion stands, it’s very difficult to see this as a blueprint for a successful national-level approach.
Let’s agree, for the sake of argument, that the National Security Agency’s various data-gathering activities in the United States are unquestionably constitutional, legitimate and necessary. Let’s further agree that the oversight regimes in place—internal measures, Congressional committees, and the Foreign Intelligence Surveillance Courts—are robust and transparent enough to prevent abuse. These assumptions are strong enough to address the vast majority of worries about the programs. Yet they do not touch one major concern: foreign intelligence agencies gathering information on Americans.
The United Kingdom’s Government Communications Headquarters—GCHQ—was revealed to have a far more extensive collection program than the NSA’s. The program, codenamed Tempora, extracts data from international fiber-optic data cables and then collates it in a manner quite similar to the NSA’s PRISM system. But Tempora takes in more, both in scope and in scale. It stores both the content and the associated metadata of communications, unlike the NSA, which merely takes the latter. While one NSA program took in ninety-seven billion pieces of information in one month, at peak rates Tempora could do that in just over two days. And GCHQ lawyers told their NSA counterparts that “we have a light oversight regime compared to the U.S.”
Tempora offers major benefits to the United States, as the NSA enjoys access to the data and works closely with GCHQ on exploiting it. The United States and Britain are surely safer and better informed, and they’re cooperating in yet another area. Yet there’s a big downside for the United States. British cable-tappers are taking in many American communications. Tempora got its start at a GCHQ station at Bude, Cornwall, where many fiber-optic cables from the United States make landfall. This is partly of necessity—the United States is a major waypoint for data flows, so much of what’s going from America and into Tempora does not necessarily involve any U.S. persons.
Yet much surely does. And this is concerning for many reasons. For it is one thing when the American government gathers information on Americans. It is another when a foreign government does—whether allied or not.
American citizens are having their privacy violated en masse by a foreign crown—by one of its espionage services, no less. Preventing such activity is one of the core functions of a government. That’s part of the reason Washington has been so unhappy with Chinese cyber snooping. That’s why numerous states around the world protested—and even took action—when the NSA’s programs were revealed.
The U.S. response to the GCHQ’s Tempora program should be similar. A government-to-government complaint is natural and appropriate. But so is a second set of steps—educating the American public about methods that could be used to protect their information from foreign peeping. This would likely be far more effective than a mere protest—espionage is, after all, an eternal element of interstate relations, and modern technology has made it terribly easy. The most effective protection must thus focus on individuals. Widespread public adoption of powerful encryption on communications, and of secure communications endpoints (email clients, phone systems, web browsers, etc.), would make mass foreign cyber snooping extremely expensive, as decryption takes time and lots of computing power. Private citizens have already organized collections of free tools that could make this happen—Peng Zhong’s PRISM Break is one example.
Yet that particular page’s name may hint at why the U.S. government hasn’t taken such steps to protect its citizens from foreign espionage. The programs don’t discriminate. Making Americans safer from Tempora would also make them safer from PRISM. Further, it would be virtually impossible to keep the rest of the world from taking the same preventive steps, reducing PRISM’s effectiveness against foreign targets. The latter problem merely requires that the government balance contending goals. But the former is a conflict of interest.
Image: Flickr/George Rex. CC BY-SA 2.0.
Anyone three hours into a game of Monopoly will tell you that one of two things predictably happens to end the misery: 1) everyone mercifully gives up or 2) someone cheats and it becomes a landslide victory. Based on Edward Snowden's email to Russian human-rights activists sent in the wee hours of Thursday morning, one might venture to say that he's a Monopoly player of the later variety. A Moscow-based Human Rights Watch researcher, Tanya Lokshina, published Snowden's email at full in Facebook about eight hours ago:
I have been extremely fortunate to enjoy and accept many offers of support and asylum from brave countries around the world. These nations have my gratitude, and I hope to travel to each of them to extend my personal thanks to their people and leaders. By refusing to compromise their principles in the face of intimidation, they have earned the respect of the world.
Unfortunately, in recent weeks we have witnessed an unlawful campaign by officials in the U.S. Government to deny my right to seek and enjoy this asylum under Article 14 of the Universal Declaration of Human Rights. The scale of threatening behavior is without precedent: never before in history have states conspired to force to the ground a sovereign President’s plane to effect a search for a political refugee. This dangerous escalation represents a threat not just to the dignity of Latin America or my own personal security, but to the basic right shared by every living person to live free from persecution.
I invite the Human Rights organizations and other respected individuals addressed to join me on 12 July at 5:00PM at Sheremetyevo Airport in Moscow for a brief statement and discussion regarding the next steps forward in my situation. Your cooperation and support will be greatly appreciated in this matter.
Edward Joseph Snowden
Snowden seems to have an understanding of government that is actually child-like in its self-centeredness. Someone who breaks the law for what he thinks is right regardless of the consequences is, at best, a vigilante. What vigilante would ever logically then use the law as a shield? He has, by nature, already abandoned the values for which it stands. Like the monopoly "banker" who sneaks a large note and then dubiously questions where you got the money to buy your railroads, Edward Snowden doesn't want to play by the rules but at the same time is demanding the protection they afford. He comes off as pitiful as a board-game cheater.
Snowden puts his own personal safety and the dignity of all of Latin America as more or less equally important: "This dangerous escalation represents a threat not just to the dignity of Latin America or my own personal security, but to the basic right shared by every living person to live free from persecution."
It's as if to whine: "It's not about Monopoly. It's about the fact that there's no way you had enough money to buy those railroads. I'm trusting you to be honest in this game. If I can't trust you to be honest in this game, how can I trust you to be honest in anything?!"
When a person breaks the law he has to face the consequences. Disobedience, even when civil, is risky. There is no Get Out Of Jail Free card for believing that breaking the law is justified. In order to enact change, one has to prove, through often-difficult trials, that such lawlessness is necessary to serve a greater moral good. This will be rather difficult for young Edward from his new condo in Siberia. (Perhaps the Russians will give him consolation kittens?)
Image: Wikimedia Commons.
In addition to the long-running “wars” on non-proper nouns such as terrorism and drugs, official Washington appears to be engaged in yet another conflict of sorts, this time against the English language. In the aftermath of the military overthrow of Mohamed Morsi in Egypt and in the ongoing revelations about the National Security Agency’s surveillance programs, the past week has given us two prominent examples of U.S. government officials employing rhetorical gymnastics in order to avoid using words in accordance with their plain, widely understood meanings.
Consider, for example, the situation in Egypt. As Peter Baker summarized in the New York Times, last week the Supreme Council of the Armed Forces “removed the democratically elected president, put him in detention, arrested his allies and suspended the Constitution.” This was quite clearly a coup d’état by any meaningful definition. It may have been a justified coup, it may have accurately reflected popular will and it may prove to be in the best interests of the Egyptian people, but none of those things change the fact that Morsi was removed from power extrajudicially, through the use of armed force.
And yet the Obama administration has been quite deliberate in its refusal to call what transpired a coup. In questioning, White House press secretary Jay Carney told reporters that the administration was “taking the time to determine what happened, what to label it.” State Department spokesman Jen Psaki was similarly evasive, saying that “each circumstance is different” and pointing to “millions of people on the ground who do not think it was a coup.” (As reporters pointed out in response, it’s unclear why this fact would have any bearing on the legal determination to be made.)
The reason for this evasion is simple: under American law, the U.S. government may not provide foreign aid “to any country whose duly elected head of government is deposed by military coup or decree.” This provision has no presidential waiver authority. The United States grants roughly $1.5 billion in foreign assistance to Egypt each year, of which about $1.3 billion is military aid. With Carney arguing that a near-term suspension of aid to Egypt “would not be in our best interest,” it’s clear why Washington would be highly reluctant to label Morsi’s overthrow a coup.
But Washington’s obfuscation is not limited to its policy on Egypt. There is also the case of the NSA and the Foreign Intelligence Surveillance Court, the body that hears requests for surveillance warrants against targets inside the United States.
Earlier this week, the Wall Street Journal reported that “the National Security Agency’s ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: ‘relevant.’” Under the Patriot Act, businesses can be made “to hand over ‘tangible things,’ including ‘records,’” as long as those things “are ‘relevant to an authorized investigation’ into international terrorism or foreign intelligence activities.” Previously, this was read as requiring a “‘reasonable possibility’ that they will produce information related to the subject of the investigation,” meaning that “very large sets of information didn't meet the relevance standard.” However, starting in the middle of the last decade, the court accepted a much more far-reaching definition of the word “relevant,” saying that it “could be broadened to permit an entire database of records on millions of people.” This paved the way for the sweeping, dragnet-style collection of metadata that has been exposed in the past month.
The FISA court’s rulings remain secret, so it’s difficult to evaluate their soundness. (Most of the lawyers quoted in the Journal piece are skeptical of their reasoning, and a legal challenge has been filed to the Supreme Court to stop the NSA’s programs.) But at a minimum, it’s clear that virtually no one in Congress thought this is what they were voting for when they reauthorized and amended the Patriot Act in 2006. When Senator Russ Feingold raised questions and warned of the potential abuse of the law through the broadening of the “relevance” standard, some, like Senator Jon Kyl, mocked him for it: “We all know the term ‘relevance.’ It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country.”
Yet the surveillance court has been using the word “relevance” in an entirely different way than it is used everywhere else and the way that members of Congress understood it at the time. Today, even Representative Jim Sensenbrenner, one of the original authors of the Patriot Act, argues that the words have been twisted well beyond their original meaning. As he told the Journal, “The government must request specific records relevant to its investigation. To argue otherwise renders the provision meaningless. It's like scooping up the entire ocean to guarantee you catch a fish.”
Obviously, this is not a new phenomenon. And political speech will never be free from those looking to twist words to achieve their policy objectives. But the practice of using words in ways that are wildly out of line with their plain definitions deserves to be called out each and every time—particularly when there are legal consequences attached to it. In the cases mentioned above, there are plausible arguments to be made for the government’s actual policy positions. Maybe it really is in America’s national interest to keep the aid money flowing to Egypt, and maybe the NSA’s surveillance programs are in the country’s best interest. Rather than making those arguments openly through the constitutional process, however, the government’s use or nonuse of “coup” and “relevance” has simply become a workaround to circumvent that process.
When you start redefining words to mean whatever you want, in order to skirt your way around existing laws, it starts to look like you don’t believe your position is actually all that strong.
Image: Wikimedia Commons/Thegreenj. CC BY-SA 3.0.
David Brooks caused a firestorm last week when he questioned whether Egypt’s Muslim Brotherhood has “the mental equipment to govern.” Yet lately we might ask the same question about Egypt’s liberals.
Brooks was drawing on an essay by the American Interest’s Adam Garfinkle, which asserts that
A typical Egyptian Muslim Brotherhood rank-and-file type now saddled up on the gyrating entrails of the Egyptian state bureaucracy...does not accept the existence of an objective fact separate from how he feels about it, and if he should feel negatively disposed toward the fact, whatever it is, the fact can be made simply to disappear.
Garfinkle’s broader argument about the Brotherhood outlook has some odd inflations and conflations. Yet this particular claim has a ring of truth. Mohamed Morsi and his followers lived, at times, in a world of their own creation. They were intuiting conspiracies everywhere long before one brought them down. And the trend continues after the coup—for example, the Brotherhood’s Arabic-language website briefly featured an article asserting that interim president Adly Mansour is a Seventh-Day Adventist, and therefore is Jewish. (Needless to say, Holocaust deniers can find friendly ears among the Brothers.)
But Egypt’s secular-liberal revolutionaries seem to be living in an alternative reality of their own. The most fundamental fact in their world is that Egypt’s coup was not a coup—that the Egyptian army can inform the Egyptian president that he is no longer the president, use its commandoes to remove him from his office and then have its head appear on national television to announce the suspension of the constitution without committing a coup. (Helpfully, the Obama administration is weighing the incorporation of this fact into its reality, as well.) And the chief argument for this fact is the enthusiasm of the coup’s civilian enthusiasts—in other words, there is no “objective fact separate from how [they] feel about it.”
Needless to say, it was very disconcerting when major media networks like CNN declined to report from the alternative reality and called the events a coup. The protesters promptly accused CNN of supporting the Brotherhood—pardon, of supporting terrorism. Sympathizers in New York City demonstrated outside CNN’s offices. Foreign reporters alleged harassment at demonstrations, and CNN international correspondent Ben Wedeman stated that “to go into Tahrir would be to risk our lives right now.”
U.S. Ambassador to Egypt Anne Patterson has also come under attack from the secular-liberal rank-and-file. Consistent with her duties as America’s representative to the Egyptian government, she met with Morsi and his associates; consistent with the American government’s views, she noted publicly that Morsi had been lawfully elected and expressed a preference for elections over “street actions.” In the alternative reality, she, and Obama, were therefore supporters of the Brotherhood. (Helpfully, some on the American right swiftly added this fact to their reality, too.) The Brotherhood became “a compliant tool at the hands of the US to serve its interests in the region.” Banners proclaimed that “Obama & Paterson [sic] Support Terrorism In Egypt.” Patterson, said a demonstrator, “manipulates people and secretly governs the country,” and “is part of a conspiracy against Egypt and its people.” She has been widely labelled “hayzaboon”—“ogre” or “crone”—and depicted with her face distorted to look the part. Others have called her “lady of doom” and “bitch.” (And we’re told that this is the faction America needs to back to advance the interests of women.)
The Egyptian liberal’s alternative reality is a very illiberal place, for it cannot bear contact with anything outside itself. Dissent threatens its very existence. And so pro-Morsi journalists are shouted out of press conferences by their colleagues. Opposition parties must be banned, their leaders rounded up, their media outlets shut down. Blotting out offensive views becomes a form of political speech. The liberals are not calling for a liberal state—what they want is a fury-state, where the government derives legitimacy from serving as a funnel for the public’s revolutionary anger. It’s New Left, not liberal democracy. It’s the vision of Maximilien de Robespierre and Hugo Chavez, not James Madison and John Stuart Mill.
Morsi was an inept ruler, and deserves much of the blame for the coup against him. He did little to guard his most precious asset, his legitimacy, until he was crowing about in his final days. He was not liberal. But neither are many of Egypt’s liberals.
The Senate may have passed a comprehensive immigration-reform bill after months of labor, but the legislative battle is just beginning. House Speaker John Boehner has announced that he’ll only bring a bill to the floor if it enjoys the support of a majority of House Republicans (a standard practice). The Republicans of the Senate’s bipartisan Gang of Eight have so failed to impress their colleagues in the House that the lower chamber won’t even use their bill as a starting point. They’ve got a lot of writing to do.
Republican criticism of the Senate bill has focused on several problems. The most fundamental flaw is that its structure will swiftly break the political coalition needed to pass and enforce it. Those who primarily support the bill because they want to legalize the illegal population get what they want quickly, as the bill grants a form of legal status when some minimalist security targets are met; those who primarily support the bill because of its enforcement and border-security provisions will have to wait longer to get what they want, and in the event of any hiccups they’ll be unable to appeal to their old coalition partners for support. Obviously, this elementary flaw will have to be addressed.
The second line of attack has focused on some rather nebulous metrics for border security, so the House bill surely will include a stronger position here. Yet tougher border enforcement won’t solve the illegal-immigration problem any more than tougher drug enforcement has solved the drug problem. Illegal immigration, like the drug trade, is driven by demand. As long as large numbers of employers are willing to hire illegal immigrants, there will be large numbers of illegal immigrants. Breaking that relationship must be the centerpiece of any serious reform.
And the Senate bill makes a serious attempt at that by requiring employers to vet the legal status of their new hires with a system known as E-Verify. Contrary to popular imagination, most illegal-immigrant employment in the United States isn’t completely off the books—about three-quarters of illegal immigrants simply use a fake Social Security number. E-Verify allows employers to check whether the Social Security numbers their employees provide are genuine. In theory, then, it would be very difficult for illegal immigrants to support themselves in the United States, prompting them to leave. In practice, the bill leaves a bit to be desired. It makes E-Verify mandatory over a period of years, years that special interests might use to weaken it. It also doesn’t require current employees to be run through the system—only new ones. And some Republicans have expressed concerns that stronger forms of E-Verify, such as one that includes photographs, could form the backbone of a national ID system—a tool the government could easily abuse. So the House bill will likely adjust the upper chamber’s E-Verify language.
One way to assuage concerns about E-Verify’s effectiveness without laying the foundations of a national ID would be to backstop it by verifying legal status with other techniques. And the government already has the infrastructure in place to do this, as William W. Chip explained in last month’s American Conservative:
Employers are already obligated to submit a Form W-4 to the IRS that gives the name and social security number of every new employee. The IRS shares that information with the Social Security Administration (SSA), which knows which numbers are invalid—or are suspicious because there are being used in multiple locations or belong to children or the very elderly—and generally does nothing about it. The SSA refuses to share evidence of fraudulent use of Social Security numbers with U.S. Immigration and Customs Enforcement (ICE). When Bush administration officials approached the chairmen of the Social Security committees in Congress about a fix, they were rebuffed.
In other words, but for a handful of senators and congressmen jealous of their bureaucratic prerogatives, the federal government would not need to mandate E-Verify. If employers knew that ICE would be notified of false or suspicious Social Security numbers—“G-Verify”—unscrupulous employers would be deterred from hiring workers they knew to be illegal, and most honest employers would voluntarily enroll in E-Verify to avoid the hassle.
Using “G-Verify” (i.e., government verification) to support E-Verify has crucial advantages over using either independently. G-Verify alone would create lots of work for the government, so using it in tandem with E-Verify is a must. A second point of enforcement would reduce the need to add risky extras like photos to E-Verify. G-Verify would drive employers toward E-Verify, as Chip says. E-Verify allows employers to determine a new hire’s status faster and with less government involvement than G-Verify, while G-Verify would still work if the Senate bill’s protection of current employees from E-Verify stands. A two-pronged system would be harder to avoid and harder for opponents to dismantle. And by making it harder for illegal immigrants to find work, it would remove a key incentive for illegal immigration—increasing the chance that America's second immigration reform to end all immigration reforms will be the last.