Books

Posted on Feb.18, 2020 in Books, Nuclear war by

“Strengthening Deterrence” with More Nuclear Bombs?

Earlier this month the Department of Defense acknowledged that it has recently begun to deploy low-yield nuclear warheads on certain submarine ballistic missiles.

“This supplemental capability strengthens deterrence. . . and demonstrates to potential adversaries that there is no advantage to limited nuclear employment because the United States can credibly and decisively respond to any threat scenario,” DoD said in a February 4, 2020 news release.

The notion that multiplying and diversifying the options for using nuclear weapons is the best way to deter their use by others has long been at the foundation of U.S. nuclear policy. Yet to a large extent it is built on wishful thinking and flimsy assumptions that can hardly stand common sense scrutiny.

The origins and development of the theory of nuclear war are illuminated with new clarity in Fred Kaplan’s new book The Bomb: Presidents, General, and the Secret History of Nuclear War. Based on interviews with many of the principals and on thousands of pages of declassified documents, Kaplan retells the story of how each Administration in the nuclear era has tried to manage the threat of nuclear war.

And like many significant works of history, his book also casts new light on the present.

Deterrence is an effort to affect the thinking of an adversary in order to discourage a resort to nuclear weapons. As such, the very concept of deterrence “is as much a psychological as a military problem,” wrote Henry Kissinger more than half a century ago (Kaplan, p. 104).

But U.S. nuclear deterrence policy shows little evidence of psychological acumen or insight. It assumes linearly that any perceived threat is best countered by a comparable, corresponding threat (so U.S. low-yield nuclear weapons are needed in order to deter Russian low-yield nuclear weapons, etc.). It does not consider the possibility that different foreign leaders — or totally different cultures — might be deterred in different ways, or not at all. It promotes the dangerous but seductive belief that larger nuclear arsenals confer greater “strength” and decisiveness. And so on.

Meanwhile, U.S. officials — who nowadays can hardly communicate effectively even with allies — think that they are sending meaningful deterrent signals to foreign adversaries. But these signals have often been lost or garbled in transmission.

“Americans put forces on alert so often that it is hard to know what it meant,” said Soviet foreign minister Andrei Gromyko in 1973 (Kaplan, p. 108).

Instead of resting on solid intelligence and empirical data — which are naturally hard to come by — nuclear policy has often been based on “hunches,” strongly held opinions, bureaucratic politics, inter-service rivalry, and serendipity.

During the Obama years, Kaplan writes, the question arose whether to officially endorse the policy of “no first use” of nuclear weapons. At a White House meeting, science advisor John Holdren not only advocated no first use, but also no second use, arguing that modern conventional weapons would be fully adequate to respond to an initial nuclear strike in most scenarios. This assertion infuriated Defense Secretary Ashton Carter, who “snapped back, red-faced, yelling” (p. 253). Carter’s anger was more likely an indication of the intensity of his feeling than the cogency of his position. But his view prevailed then, and now.

All of this would simply be a fascinating puzzle for political scientists if it were not also extremely dangerous and prohibitively expensive. Furthermore, the nuclear weapons enterprise entails tremendous opportunity costs that will make it difficult or impossible to meet other urgent national and global challenges.

But “absent some transformation in global politics,” Kaplan writes (p. 298), “an upheaval so immense that it can hardly be imagined, the bomb will always be with us, looming over everything.”

Such a transformation or upheaval may yet emerge. Even if it doesn’t there is plenty that could be done to limit and reduce the threat of nuclear war — including extension of the New START nuclear arms reduction treaty that will expire in 2021. But that would require the sort of vision and leadership that are in short supply at the moment.

*    *    *

Deterrence “sounds tough and smart, even though, in many circumstances, nobody is really sure how it could ever work,” wrote Amy Zegart in The Atlantic last month. “It has become a hazy, ill-formed shorthand policy that consists of ‘stopping bad guys from doing bad things without actually going to war, somehow’.”

“Deterrence isn’t a useless idea,” she wrote. “But it’s not magic fairy dust, either.”

“History shows that deterrence has been useful only under very specific conditions. In the Cold War, mutual assured destruction was very good at preventing one outcome: total nuclear war that could kill hundreds of millions of people. But nuclear deterrence did not prevent the Soviets’ other bad behavior, including invading Hungary, Czechoslovakia, and Afghanistan. The key Cold War takeaway isn’t that policy makers should use deterrence more. It’s that some things are not deterrable, no matter how much we wish them to be.”

*    *    *

Why did arms control advocates criticize the Trump Administration for withdrawing from the 1987 Intermediate-Range Nuclear Forces Treaty even after Russia had violated the Treaty by conducting a test of an intermediate range cruise missile?

According to a rather disconcerting speech last week by State Department Assistant Secretary Christopher Ford, the criticism was rooted in a “pathology” within the arms control community. As Ford sees it, those who believe that the U.S. should have adhered to the Treaty despite the Russian violations are indifferent to facts, unconcerned with actual security issues, and blindly devoted to “an identity politics of virtue signaling, progressive solidarity, and consciousness-raising against retrograde mindsets.”

Other, better explanations are possible. According to Kaplan, “withdrawing from the treaty gave the Russians what they wanted. The Russian military had abhorred the INF Treaty from the moment that Gorbachev [and Reagan] signed it.”

“Killing the treaty would help only the Russians, giving them free rein to build as many of these weapons as they like and to blame the breakdown on the Americans, while doing nothing for the West.” (p. 293)

*    *    *

There are now “mountains” of declassified records on nuclear issues at the National Archives and the presidential libraries, including those which helped inform Kaplan’s The Bomb.

“These institutions are invaluable for the preservation of our history and democracy,” he wrote, “and their underfunding in recent years is shameful.” (p. 300)

Posted on Nov.15, 2017 in Books, transparency by

Against Naive Transparency

“Sunlight is said to be the best of disinfectants,” Louis Brandeis famously wrote a century ago in praise of publicity.

But in fact there are many better disinfectants, such as iodine and alcohol. And in excess, sunlight itself can induce sunburn or even skin cancer.

Likewise, by analogy, “transparency” as a political virtue is rife with questionable or erroneous assumptions, writes law professor Mark Fenster in his new book The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017).

The ideal of a fully visible state subject to rational public oversight and control has never been achieved and is not a realistic objective, according to Fenster. And it’s not for lack of trying.

“The distance between ideal and reality is not solely the consequence of a failure of public will, nor is it a reflection of government officials’ lack of moral character. Nor is it a failure to develop, calibrate, and roll out the right set of laws, institutions, and technology.” The problem is more fundamental, and may be intractable.

The naive model of transparency in which government discloses itself to an attentive public, thereby enhancing policy deliberation and government accountability, corresponds to reality loosely at best, writes Fenster.

To begin with, government “documents” are never a full representation of the reality of official decision-making. They can never be more than a semantic slice of the whole. Disclosure of such documents is not a neutral process either. It may mislead by its selectivity, or it may overwhelm by its abundance. And the “public” that is the intended audience for transparency may be, and often is, distracted, indifferent, and disengaged.

It follows that more “Disclosure will not necessarily transform the United States or any Western democracy into a model of popular deliberation, participatory decision making, and perfect governance. Western governments and societies are too complex and decentralized, their publics too dispersed, and their information environments too saturated for transparency, by itself, to have significant transformative potential.” (For similar reasons, he finds, massive unauthorized disclosures of official information consistently do less damage than feared.)

“Secrecy is one of many problems that affect government performance, but it occupies too much of our political imagination,” Fenster concludes in this thoughtful and challenging book.

But even if many acts of transparency are indeed futile or inconsequential, that does not mean that all of them are.

Timely disclosure of environmental contamination saves lives. Exposure of conflicts of interests undoubtedly deters and mitigates corruption. Open government laws enable and facilitate public participation in the policy process to a remarkable extent. In Latin America, more than 100 trials of suspected war criminals have been carried out in recent years using evidence derived from declassified U.S. government documents and Freedom of Information Act requests, Tom Blanton of the National Security Archive pointed out lately. Those are just a few of the real-world consequences of well-conceived transparency measures.

A skeptical view of transparency that is cognizant of its theoretical and practical limits “does not require abandoning a commitment to open government and democracy,” Fenster affirms. On the contrary, well-founded skepticism may provide a basis for improving existing transparency practices by focusing them on what is most valuable and most achievable.

Posted on Jul.07, 2017 in Books by

The Darkening Web

Cyberspace has increasingly become an arena of national self-assertion and international conflict instead of the transnational global commons it once seemed to be. Preserving the vision and the possibility of a free internet is an urgent task.

That is the basic thrust of a new book called The Darkening Web: The War for Cyberspace by Alexander Klimburg (Penguin Press, July 2017).

For my review of the book, see Cybersecurity: The cold war online, Nature 547, 30–31 (06 July 2017).

Posted on Aug.18, 2016 in Books by

Book Review: The Ethics of Technological Innovation

My review of the new book The Ethics of Invention: Technology and the Human Future by Sheila Jasanoff appeared in this week’s Nature magazine. It begins:

“Technological innovation in fields from genetic engineering to cyberwarfare is accelerating at a breakneck pace, but ethical deliberation over its implications has lagged behind. Thus argues Sheila Jasanoff — who works at the nexus of science, law and policy — in The Ethics of Invention, her fresh investigation. Not only are our deliberative institutions inadequate to the task of oversight, she contends, but we fail to recognize the full ethical dimensions of technology policy. She prescribes a fundamental reboot.”

“Ethics in innovation has been given short shrift, Jasanoff says, owing in part to technological determinism, a semi-conscious belief that innovation is intrinsically good and that the frontiers of technology should be pushed as far as possible….”

“The author argues for an entirely new body of ethical discourse, going beyond technical risk assessment to give due weight to economic, cultural, social and religious perspectives.”

The rest can be read at Nature.com.

Posted on Mar.10, 2016 in Books, Cybersecurity, Cyberwar by

A Bureaucratic History of Cyber War

When Gen. Keith Alexander became the new director of the National Security Agency in 2005, “his predecessor, Mike Hayden, stepped down, seething with suspicion”– towards Alexander.

As told by Fred Kaplan in his new book Dark Territory, Gen. Hayden and Gen. Alexander had clashed years before in a struggle “for turf and power, leaving Hayden with a bitter taste, a shudder of distrust, about every aspect and activity of the new man in charge.” The feeling was mutual.

The subject (and subtitle) of Kaplan’s book is “the secret history of cyber war.” But the most interesting secrets disclosed here have less to do with any classified missions or technologies than with the internal bureaucratic evolution of the military’s interest in cyber space. Who met with whom, who was appointed to what position, or even (as in the case of Hayden and Alexander) who may have hated whom all turn out to be quite important in the ongoing development of this contested domain.

Kaplan seems to have interviewed almost all of the major players and participants in this history, and he has an engaging story to tell. (Two contrasting reviews of Dark Territory in the New York Times are here and here.)

Meanwhile, the history of cyber war is becoming gradually less secret.

This week, the Department of Defense openly published an updated instruction on Cybersecurity Activities Support to DoD Information Network Operations (DoD Instruction 8530.01, March 7).

It replaces, incorporates and cancels previous directives from 2001 that were for restricted distribution only.

Posted on Jan.06, 2016 in Books, Military Doctrine by

The Domestic Role of the American Military

The role of armed forces in an open society may be likened to a potent medicine that is life-saving in the proper dosage but lethal beyond a certain proportion. Military forces have proved to be indispensable for securing the political space in which free institutions can flourish, but they may also trample or destroy those institutions if unconstrained by law and wise leadership.

A rich and thoughtful account of how the U.S. military has protected, supported, clashed with and occasionally undermined constitutional government in this country is presented in the new book “Soldiers on the Home Front: The Domestic Role of the American Military” by William C. Banks and Stephen Dycus (Harvard University Press, 2016).

The authors, who are law professors, trace the role of the military back to its constitutional roots, which are not as precisely defined as they might have been. The Framers of the Constitution “knew that troops would sometimes be needed to help enforce the civilian laws. They just neglected to tell us precisely when.”

And so, Banks and Dyson write, U.S. military forces have played a multiplicity of domestic roles over time, both constructive and abusive.

“In the middle of the twentieth century, [troops] helped integrate Southern schools and universities, and they were sent into cities around the country to help control race riots. Federal forces were also used to suppress political protests during the Vietnam War. All the while, the unique capabilities of the military were welcomed in communities recovering from natural disasters.”

The authors devote chapters to military detention of U.S. citizens, trial by military commission, domestic military intelligence gathering, and the imposition of martial law– each of which is a matter of sometimes astonishing historical fact, not simply of speculative possibility, from Revolutionary times to the Civil War and World War II to our own post-9/11 era.

One of the surprising themes that emerges from “Soldiers on the Home Front” is that even after centuries of legislation, litigation and historical experience, many of the underlying policy questions and some of the basic legal issues remain at least partly unresolved:

“Whether a president has inherent constitutional authority, or may be authorized by Congress, to order the military imprisonment of a civilian without charges, perhaps indefinitely, is a question that has not yet been definitively answered by the courts. As a practical matter, however, the president may do so if no court will intervene.” (p. 116)

“Even after more than two centuries of experience, appropriate limits on military investigations of civilians are ill-defined and controversial.” (p. 167)

“The small number of episodic judicial opinions about martial law have left many questions unanswered. With no mention of martial law in the text of the Constitution, we might have expected Congress to adopt policy for resort to such a drastic measure. But it has so far failed to do so.” (p. 211)

“Ambiguity remains about who in the United States may be imprisoned, upon what grounds, and pursuant to what process.” (p. 249)

“The rules, in other words, are a mess.” (p. 263)

More fundamentally, “Soldiers on the Home Front” reminds us that constitutional values are not self-enforcing, and are liable to be eroded in times of political stress or national emergency. Defending those values is the task of an alert, informed citizenry. This fine book should help.

Posted on Oct.05, 2015 in Books, Russia, Surveillance by

The Red Web: Russia and the Internet

The Internet in Russia is a battleground between activists who would use it as a tool of political and cultural freedom and government officials who see it as a powerful instrument of political control, write investigative journalists Andrei Soldatov and Irina Borogan in their new book The Red Web. For now, the government appears to be winning the battle.

Soldatov and Borogan trace the underlying conflict back to official anxiety in the Soviet era about the hazards of freedom of information. In the 1950s, the first Soviet photocopy machine was physically destroyed at the direction of the government “because it threatened to spread information beyond the control of those who ruled.”

With the introduction of imported personal computers in the 1980s and a connection to the Internet in 1990, new possibilities for free expression and political organizing in Russia seemed to arise. But as described in The Red Web, each private initiative was met by a government response seeking to disable or limit it. Internet service providers were required to install “black boxes” (known by the acronym SORM) giving Russia’s security services access to Internet traffic. Independent websites, such as the authors’ own agentura.ru site on intelligence matters, were subject to blocking and attack. Journalists’ computers were seized.

But the struggle continued. Protesters used new social media tools to organize demonstrations. The government countered with new facial recognition technology and cell phone tracking to identify them. Large teams of “trolls” were hired to disrupt social networks. A nationwide system of online filtering and censorship was put in place by 2012, and has been refined since then.

To some extent, the government actions constituted an implied threat rather than a fully implemented one, according to Soldatov and Borogan.

“The Russian secret services have had a long tradition of using spying techniques not merely to spy on people but to intimidate them. The KGB had a method of ‘overt surveillance’ in which they followed a target without concealing themselves. It was used against dissidents.”

And in practice, much of the new surveillance infrastructure fell short of stifling independent activity, as the authors’ own work testifies.

“The Internet filtering in Russia turned out to be unsophisticated; thousands of sites were blocked by mistake, and users could easily find ways to make an end-run around it,” they write. Moreover, “very few people in Russia were actually sent to jail for posting criticism of the government online.”

Nevertheless, “Russian Internet freedom has been deeply curtailed.”

In a chapter devoted to the case of Edward Snowden, the authors express disappointment in Snowden’s unwillingness to comment on Russian surveillance or to engage with Russian journalists. “To us, the silence seemed odd and unpleasant.”

More important, they say that Snowden actually made matters in Russia worse.

“Snowden may not have known or realized it, but his disclosures emboldened those in Russia who wanted more control over the Internet,” they write.

Because the Snowden disclosures were framed not as a categorical challenge to surveillance, but exclusively as an exposure of U.S. and allied practices, they were exploited by the Russian government to legitimize its own preference for “digital sovereignty.”

Snowden provided “cover for something the Kremlin wanted all along– to force Facebook, Twitter, and Google’s services, Gmail and YouTube, to be subject to Russian legislation, which meant providing backdoor access to the Russian security services.”

“Snowden could have done good things globally, but for Russia he was a disaster,” said Stas Kozlovsky of Moscow State University, a leading Wikipedia contributor in Russia, as quoted in The Red Web.

(Recently, Snowden has spoken out more clearly against Russian surveillance practices. “I’ve been quite critical of [it] in the past and I’ll continue to be in the future, because this drive that we see in the Russian government to control more and more the internet, to control more and more what people are seeing, even parts of personal lives, deciding what is the appropriate or inappropriate way for people to express their love for one another … [is] fundamentally wrong,” he said in a recent presentation. See “Snowden criticises Russia for approach to internet and homosexuality,” The Guardian, September 5, 2015).

The Red Web provides a salutary reminder for Western readers that the so-called U.S. “surveillance state” has hardly begun to exercise the possibilities of political control implied in that contemptuous term. For all of its massive collection of private data, the National Security Agency — unlike its Russian counterparts — has not yet interfered in domestic elections, censored private websites, disrupted public gatherings, or gained unrestricted access to domestic communications.

Soldatov and Borogan conclude on an optimistic note. After all, they write, things are even worse in China. See The Red Web: The Struggle Between Russia’s Digital Dictators and the New Online Revolutionaries by Andrei Soldatov and Irina Borogan, Public Affairs, 2015.

Posted on Mar.25, 2015 in Books, Dept of Energy, History, Nuclear Weapons by

H-Bomb History Published Over Government Objections

Physicist Kenneth W. Ford, who participated in the design of the hydrogen bomb in the early 1950s, has published a memoir of his experiences despite the objections of Energy Department reviewers who requested substantial redactions in the text.

“Building the H Bomb: A Personal History” was released this month in softcopy by World Scientific Publishing Company. Hardcopy editions are to appear in May.

The dispute between the author and the government over the book’s publication was first reported by the New York Times in “Hydrogen Bomb Physicist’s Book Runs Afoul of Energy Department” by William J. Broad, March 23. The Times story immediately turned the book into something of a bestseller, and it ranks number one on Amazon.com in categories of Physics, Nuclear Physics, and Military Technology.

Significantly, Department of Energy reviewers did not attempt to compel the author to amend his text, nor did they seek to interfere with the book’s publication. So their response here is altogether different than in the 1979 Progressive case, when the government sought and received an injunction to block release of Howard Morland’s article “The H Bomb Secret.” Rather, they asked Dr. Ford to make extensive changes in his manuscript. Depending on one’s point of view, the requested changes may have been frivolous, unnecessary, or prudent. But there is no reason to suppose they were presented in bad faith. The Department had nothing to gain from its recommended changes.

For his part, Dr. Ford was not on a crusade to expose nuclear secrets. On the contrary, “I have bent every effort to avoid revealing any information that is still secret,” he wrote in prefatory remarks. As one of the original participants in the H-Bomb program, he has exceptional standing to render a judgment on what is and is not sensitive. “In my considered opinion, this book contains nothing whose dissemination could possibly harm the United States or help some other country seeking to design and build an H bomb.”

Still, while Dr. Ford’s scientific judgment is entitled to great weight, the question of what constitutes Restricted Data under the Atomic Energy Act is not a scientific issue. It is a legal matter which is delegated by statute to the Department of Energy. This means that DOE retains some legal authority over the information in the book which it has not yet used. One may still hope that the Department, in its wisdom, will decline to exercise that authority in this case.

“Building the H Bomb” is a rather charming and quite readable account of a young man finding his way in the midst of momentous scientific and political upheaval. It is not a history of the H-Bomb. For that, one still needs to turn to Richard Rhodes’ “Dark Sun” and other works. Dr. Ford does provide an introduction to the basic physics of nuclear weapons. But for those who don’t already know the names of John Wheeler (Ford’s mentor), Enrico Fermi, or Hans Bethe, and what made them great scientists and men of stature, this book will not enlighten them very much.

What the book does offer is an eyewitness account of several crucial episodes in the development of the hydrogen bomb. So, for example, Ford considers the contested origins of the Teller-Ulam idea that was the key conceptual breakthrough in the Bomb’s history. He cannot decisively resolve the disputed facts of the matter, but he knew Teller and he knew Ulam, as well as Richard Garwin, John Toll, Marshall Rosenbluth, David Bohm and many others, and he provides fresh perspectives on them and their activities. Any historian of the nuclear age will relish the book.

The National Security Archive has posted an informative commentary by Dr. Ford, along with several important declassified documents that were used by the author in preparing the book.

Posted on Mar.11, 2015 in Books, privacy by

Data and Goliath: Confronting the Surveillance Society

Within a remarkably short period of time– less than two decades– all of us have become immersed in a sea of electronic data collection. Our purchases, communications, Internet searches, and even our movements all generate collectible traces that can be recorded, packaged, and sold or exploited.

Before we have had a chance to collectively think about what this phenomenal growth in data production and collection means, and to decide what to do about it, it threatens to become an irreversible feature of our lives.

In his new book Data and Goliath: The Hidden Battles to Capture Your Data and Control Your World (Norton, 2015), author and security technologist Bruce Schneier aims to forestall that outcome, and to help recover the possibility of personal privacy before it is lost or forgotten.

“Privacy is not a luxury that we can only afford in times of safety,” he writes. “Instead, it’s a value to be preserved. It’s essential for liberty, autonomy, and human dignity.”

Schneier describes the explosion of personal data and the ways that such data are harvested by governments and corporations. Somewhat provocatively, he refers to all types of personal data collection as “surveillance,” whether the information is gathered for law enforcement or intelligence purposes, acquired for commercial use, or recorded for no particular reason at all. Under this sweeping definition, the National Security Agency and the FBI perform surveillance, but so do Google, Sears, and the local liquor store.

“Being stripped of privacy is fundamentally dehumanizing, and it makes no difference whether the surveillance is conducted by an undercover policeman following us around or by a computer algorithm tracking our every move,” he writes (p.7). Others would argue that it makes all the difference in the world, and that while one never wants to be followed by an undercover policeman, a computer algorithm that helps us drive a car to our destination might be quite welcome. Schneier, of course, knows about the benefits of such applications and acknowledges them later in the book.

Having gained access to classified NSA documents that were leaked by Edward Snowden and having aided reporters in interpreting them, the author is particularly exercised by the practice of bulk collection or, the term he prefers, mass surveillance.

“More than just being ineffective, the NSA’s surveillance efforts have actually made us less secure,” he says. Indeed, the Privacy and Civil Liberties Oversight Board found the “Section 215” program for bulk collection of telephone metadata to be nearly useless, as well as likely illegal and problematic in other ways. But by contrast, it also reported that the “Section 702” collection program had made a valuable contribution to security. Schneier does not engage on this point.

Aside from the inherent violations of privacy, Schneier condemns the NSA practice of stockpiling — instead of repairing — computer software vulnerabilities and government strong-arming of Internet firms to compel them to surrender customer data.

His arguments are fleshed out in sufficient detail that readers will naturally find points to question or to disagree with. “For example,” he writes, “the NSA targets people who search for information on popular Internet privacy and anonymity tools” (p. 38). It’s not clear what “NSA targeting” means in this context. Many people conduct such information searches with no discernible consequences. In any case, Schneier positively encourages readers to seek out and adopt privacy enhancing technologies.

“Surveillance is a tactic of intimidation,” Schneier writes, and “in the US, we already see the beginnings of [a] chilling effect” (pp. 95-96). But this seems overwrought. One may curse the NSA, file a lawsuit against it, advocate reductions in the Agency’s budget, or publish its Top Secret records online all without fear of reprisal. Lots of people have done so without being intimidated. (Agency employees who defy their management are in a more difficult position.) If there is a chilling effect associated with NSA surveillance, it doesn’t appear to originate in the NSA.

What is true is that surveillance shapes our awareness and that it can alter our conduct in obvious or profound ways. Many people will slow down when driving past a police car or a traffic surveillance camera. Almost all will modify their speech or their behavior depending on who is listening or watching. The book is particularly good at exploring the ramifications of such surveillance-induced changes in the way we behave and interact, and the risks they pose to an open society.

In the latter portions of the book, Schneier presents an action agenda for curbing inappropriate surveillance including steps that can be taken by government, by corporations, and by concerned members of the public. The proposals are principled and thoughtful, though he admits not all are readily achievable.

Schneier’s core objective is to preserve, or to restore, a domain of personal privacy that is impervious to unwanted intrusion or monitoring.

He acknowledges the necessity of surveillance for valid law enforcement and intelligence purposes. Among other things, he calls for the development of privacy-respectful innovations in these areas of security policy.

“If we can provide law enforcement people with new ways to investigate crime, they’ll stop demanding that security be subverted for their benefit.” Similarly, “If we can give governments new ways to collect data on hostile nations, terrorist groups, and global criminal elements, they’ll have less need to go to the extreme measures I’ve detailed in this book…. If we want organizations like the NSA to protect our privacy, we’re going to have to give them new ways to perform their intelligence jobs.”

Along these lines, a 2009 study performed for the Office of the Director of National Intelligence that was released last month raised the somewhat fanciful possibility of “crowdsourcing intelligence”:

“The intelligence community has a unique opportunity to engage the public to help filter and solve a multitude of difficult tasks…. For example, consider a citizen-driven Presidential Daily Brief and its potential to enable truly democratic communication to the highest levels in the United States.”  See Mixed Reality: Geolocation & Portable Hand-Held Communication Devices, ODNI Summer Hard Problem (SHARP) Program, 2009.

Anyway, for many people the erosion of personal privacy has arrived abruptly and overwhelmingly. They might reasonably conclude that the changes they’ve experienced are beyond their ability to control or influence. Schneier insists that that is not necessarily the case– but that the future of privacy depends on how much the public cares about it. This challenging book explains why privacy matters, how it is threatened, and what one can do to defend it.

“In the end, we’ll get the privacy we as a society demand and not a bit more,” he concludes.

 

Posted on Mar.02, 2015 in accountability, Books, Secrecy by

Making Government Accountability Work

The U.S. Constitution does not explicitly recognize a “public right to know.” But without reliable public access to government information, many features of constitutional government would not make sense. Citizens would not be able to evaluate the performance of their elected officials. Freedom of speech and freedom of the press would be impoverished. Americans’ ability to hold their government accountable for its actions would be neutered.

The conditions that make government accountability possible and meaningful are the subject of the new book Reclaiming Accountability by Heidi Kitrosser (University of Chicago Press, 2015).

The author introduces the term “substantive accountability,” which she contrasts with mere “formal accountability.” While formal accountability includes such things as the right to vote, substantive accountability requires that people must “have multiple opportunities to discover information relevant to their votes….”

This may seem obvious, but the trappings of formal accountability are often unsupported by the information that is needed to provide the substance of accountability, especially in matters of national security.

Kitrosser, a professor of law at the University of Minnesota Law School, shows that the principles of substantive accountability are deeply rooted in the text, structure and history of the Constitution. She uses those principles to provide a framework for evaluating contemporary assertions of presidential power over information, including executive privilege, state secrets, secret law, and prosecutions of unauthorized disclosures.

It cannot be the case, for example, that unauthorized disclosures of classification information are categorically prohibited by law and also that the President has discretion to classify information as he sees fit. If that were so, she explains, then the President would have unbounded authority to criminalize disclosure of information at will, and the classification system would have swallowed the First Amendment. As she writes: “The First Amendment’s promise would be empty indeed if its protections did not extend to information that the president wishes to keep secret.”

Kitrosser reviews the relevant case law to find openings and lines of argument that could be used to bolster the case for substantive accountability. She notes that Supreme Court rulings over the years “contain the seeds of an affirmative case for strongly protecting classified speakers.” In a 1940 ruling in Thornhill v. Alabama, for example, the Court declared that “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.”

There is, of course, an opposing school of thought which posits a largely unconstrained presidential authority over government information. Moreover, this presidentialist view has been on “an upward historical trajectory” in recent decades. Leak investigations and prosecutions have risen markedly, and so have assertions of the state secrets privilege. Secret law blossomed after 9/11. The very term “executive privilege” is a modern formulation that only dates back to 1958 (as noted by Mark Rozell).

One of the deeply satisfying features of Kitrosser’s book (which is a work of scholarship, not a polemic) is her scrupulous and nuanced presentation of the presidential supremacist perspective. Her purpose is not to ridicule its weakest arguments, but to engage its strongest ones. To that end, she traces its origins and development, and its various shades of interpretation. She goes on to explain where and how substantive accountability is incompatible with presidential supremacy, and she argues that the supremacist viewpoint misreads constitutional history and is internally inconsistent.

The book adds analytical rigor and insight to current debates over secrecy and accountability, which it ultimately aims to inspire and inform.

“We can seek to harness and support those aspects of American law, politics, and culture that advance substantive accountability,” she writes.

“Reclaiming accountability is no single act. From internal challenges or external leaks by civil servants, to journalistic inquiries and reports, to congressional oversight, to FOIA requests, accountability is claimed and reclaimed every day by countless actors in myriad ways.”