A Hobbesian Look At The NSA Spying Issues & Programs

Kilburn: The Hobbesian Turn

A small weekly paper serving the north Shore of Boston often turns out some interesting commentary. Michael Kilburn, whom I believe to be a professor of political science at Endicott College in Beverly, Massachusetts, offered a column that caught my eye. In the article he reviews a bit of the history of abuse of civil rights via wiretapping and gives us some significant reasons to reconsider any support of domestic spy programs.

Shortly after the terrorist attacks of Sept. 11, 2001, President Bush issued an executive order authorizing the National Security Agency to begin conducting secret and warrantless surveillance of Americans. While the NSA routinely trawls electronic communication worldwide, searching for intelligence to protect US security and interests, it is prohibited by law from training its devices on American citizens without judicial oversight.

In fact, the very existence of this shadowy agency was only revealed in 1975, as a result of Senate hearings into illegal wiretapping that emerged from the Watergate investigation. (Until then, it was joked that NSA stood for "No Such Agency" or "Never Say Anything.")

Revelations of violations of civil liberties and worse by the Nixon administration led to the 1978 "Foreign Intelligence Surveillance Act" (FISA). This act created a secret court to provide nominal oversight of any domestic spying, while effectively giving intelligence agencies a free hand to eavesdrop on citizens. Practically no warrants have been refused in the 30 years of the court’s existence. The burden of proof is light, the proceedings secret, and permission can be granted after the fact.

While there isn't any new revelations for readers of this blog, the fact that a newspaper with a distribution of over 100,000 copies and a penetration of at least 30% (at least those were the paper's stats the last time I used them for advertising in 1993) actually printed the article and opened itself up to some heated debate and criticism demonstrates that there is a growing sentiment and intellectual assessment against the Bush administration and the congress critters that have openly supported the Bush gang shenanigans.

Nevertheless, a New York Times investigation recently revealed that the Bush administration circumvented even these cursory legal restrictions and has been secretly spying on thousands of American citizens, allegedly looking for connections to terrorism. While the White House claims that only a few Americans with clear ties to terrorist networks have been implicated, other reports suggest the program is much more widespread.

In other words, Bush lied again and broke the law in the process... and has tried to cover it up and make excuses for it.

Regardless, the logic of data mining techniques - used by the NSA inEchelon and other electronic eavesdropping programs - demands casting a very wide net. Such procedures were outlined publicly in the administration’s aborted "Total Information Awareness" program of 2002. When Congress and the American people recoiled from the Orwellian connotations of TIA, the program was renamed Terrorist Information Awareness and subcontracted to other programs and agencies. In theory and practice then, all Americans are potential suspects and are subject to government surveillance.

That is correct... ALL AMERICANS ARE SUSPECTS AND SUBJECT TO GOVERNMENT SURVEILLANCE... In other words, the protections that our founders and framers intentionally built into our Constitution are being ignored, circumvented and violated. All of us are being treated as suspect and criminal, even in the absence of any evidence, any action on our part or any accusation coming from a reliable party. Our rights are inherently violated in the mere assumption that we are suspects and criminals.

The White House response to the current revelations has been textbook Rovean jujitsu: turning the glaring weaknesses and shaky legal foundation of the policy into a daring hostile takeover bid. First, the name of the program was changed from "domestic surveillance" to " terrorist surveillance"; the journalists who reported the story and subsequent critics of the program were accused of subversion and aiding and abetting the enemy; and the president went on a nationwide barnstorming tour to defend and promote the policy.

The Bush Doctrine includes spinning and re-framing the circumstances into acceptable language that causes enough fear and intimidation that it generates a willingness to accept complete and utter violation of basic civil rights and constitutional protections.

This arrogance was reiterated in the State of the Union address where Bush claimed sweeping constitutional authority to conduct the war on terror on his own terms, with or without the support of the other branches of government.

In other words, he stood on a podium before an entire nation and all of its major representatives and outright lied... BUSH LIED AND OUR TROOPS HAVE DIED... for an unjust cause and an unreasonable course of action... and our rights and liberties are completely ignored. More on these issues can be found in the transcript of the most recent airing of CBS "60 Minutes."

Unswayed by these broad claims, the Senate Judiciary Committee held hearings on the legality of the program. In a contentious 8-hour testimony - though not under oath - Attorney General Alberto Gonzales laid out the legal theory that the president’s inherent powers as commander in chief trumped any "peacetime" statutes. Among other creative accounting for such presidential prerogative, he asserted that the original Congressional resolution authorizing the use of force against Al Qaeda (passed unanimously on Sept 14, 2001) was effectively a blank check giving the president unlimited power in the broader "war on terror."

Republican chairman Arlin Specter dismissed this interpretation, saying it "defies logic and plain English," though it does reveal the scope of the administration’s broader agenda.

In other words, AG Gonzalez is a liar, a criminal (breaching our Constitution is a crime), and an utter legal moron.

The domestic surveillance program is only the latest example of the Bush administration’s ambition of a "unitary executive" that gives the president absolute and unchecked powers, including the right to interpret laws as he sees fit. While he has yet to veto a single bill, for example, Bush has extensively used executive orders and interpretive signing statements to subvert or thwart Congressional will as it applies to the executive branch. He has asserted unilateral authority to establish military tribunals, suspend habeas corpus, torture and indefinitely detain suspects in the war on terror without charge or trial.

The Supreme Court and Congress have been less indulgent of these claims, but according to the neo-Conservative ideology, Constitutional checks and balances - indeed the rule of law itself - is essentially an unnecessary inconvenience for executive authority and a dangerous distraction from the war.

In other words, the current political leadership of all three branches of our federal government is more committed to an ultra-conservative political ideology than a factual, constitutional and/or legal basis of government.

This position, entails a dramatic reversal of the very foundation of American political theory and practice; a Hobbesian turn. Thomas Hobbes was a 17th century English political philosopher who theorized the ideal form of government for times of unrest. While his notions of equality, popular sovereignty and the social contract were revolutionary at the time, Hobbes’ conclusion was quite reactionary. The only solution to the violent anarchy of sovereign equals waging a war of all against all, he claimed, was the complete surrender of liberty to an all-powerful Leviathan who alone could guarantee security. Life outside such a totalitarian state, he famously wrote, would be "nasty, brutish, and short."

But Hobbes' scenario was restricted to a complete and utter state of chaos and anarchy, not a time of war that was essentially being waged on foreign soil and only had some--SOME--fallout on our own soil.

Hobbes’ younger contemporary John Locke, however, took a more sanguine view of human nature and its political implications. For Locke, the state of nature was not utter violent chaos, but merely "inconvenient." The solution was not absolute power, but only the absolute minimum power necessary to facilitate relations among sovereign individuals. Should a government usurp too much power and become tyrannical, it was not only the right, but also theduty of free citizens to rise up in revolution against it. Locke’s version of popular sovereignty, conditional consent and limited government provided the theoretical justification for the Declaration of Independence and grounded the American Constitutionalism that followed.

It is important to note that the political philosophy that emerged--and is indeed embedded in the US Constitution--is that of Locke, not Hobbes.

The Hobbesian turn suggested by the positions and policies of the Bush administration in its ersatz "war on terror," of a nation surrendering its natural and constitutional rights in exchange for security, threatens the very tyranny America is supposed to stand against and demands a revolutionary accounting. In his Senate testimony last week, Gonzales criticized the very premise of the hearings, chastising the committee for imperiling the program by even discussing its existence. "Our enemy is listening," he said.

He may be more right than he knows.

Indeed, the enemy is within our own government... As a veteran I still recall the words of my oath that required me to "defend the Constitution against all enemies, foreign or domestic." The enemy is George W. Bush, his gang and those that continue to support his tyrannical grab for power outside of the constitutional parameters allotted to his office, his party and his cronies.