National Security and the Legitimacy of the State

Edward Snowdon
Edward Snowdon: His revelations (though not new) have launched an avalanche of introspection and head scratching.

The New York Times and the Guardian have been digging ever deeper into the activities of the US National Security Agency or NSA following the leaking by Edward Snowdon of information about how they were spying both on countries and ordinary people at home.  Hot on the heels of the Chelsea Manning and Wikileaks diplomatic cables episode, there has been a constant flow of stories reporting on nefarious activities of spooks and governments, embarrassing opinions, and the mechanisms by which international diplomacy and spying are conducted, though Wired Magazine had got there first.   There are numerous angles to all of this.  There is the technology problem, an Orwellian, Kurtzweilian post-humanist dystopia where technology trumps all, and big data and analytics undermines or redefines the essence of who we are and forces a kind of a re-evaluation of existence.  There is the human rights problem, the balancing of the right to privacy and – generally speaking – an avoidance of judgement of the individual by the state, with the obligation to secure the state.  This issue is complex – if for example we have an ability to know, to predict, to foretell that people are going to do bad things, but we choose not to do that because it would require predicting also which people were going to do not-bad things, and therefore invade their privacy, is that wrong?  Many people said after 9/11 ‘why didn’t we see this coming?’ Which leads to the question – if you could know all that was coming, would you want to know?

We’ve discussed before on this blog the distinction between internal and external legitimacy before: where the people of a state can view the state itself as legitimate (perhaps like North Korea) the outside world may not; similarly, there are many cases (perhaps Equatorial Guinea, or even Saudi Arabia) where the outside world sees the state as legitimate, while its people do not.  The people within internally illegitimate states – it happens a lot in the developing world – tend not to recognize the infrastructure of state, not in some act of political defiance, but because it is simply not relevant.  Some African states have no state services in remote areas – no healthcare, no education, no security services or police – and these people simply go on living in tribal or feudal societies entirely separated from the state.  The outside world may recognise the state structure as legitimate (and in turn award it rights over state credit in international finance markets, and over natural resource distribution) but that simply isn’t an issue for many of its citizens.

The state is internally legitimate because people place their trust in the state to serve their collective interests.  The state is internally legitimate because civil participation in the structures of the state, and acquiescence to the powers of the state are relatively high.  People pay taxes, people vote, and communities subject themselves to the ministrations of the justice system.  It appears increasingly as if the requirement for trust, however, is breaking down, and the state is becoming a more functional entity.  Liberal democracies in particular are less and less interested in the State exercising moral judgements.  We don’t want the state ‘in our bedroom’, so to speak.  We fight for increasingly liberal laws around the family, sex, religion, drugs, and what we loosely call culture, an element that challenges many European societies in particular.

What remains for the state is an administrative function.  Justice and security in particular are still very important elements in developed countries, as is the management of the economic infrastructure – transport, currency, and so on.  There are bad guys within our communities, and there are bad guys in foreign countries, and we trust the government to protect us from these bad guys as best they can.  Modern technology and the internet means that governments can monitor and record enormous amounts of detail about every individual in the country, and indeed many beyond the country.  Computers can determine patterns, learn to judge, and make determinations on perceived threats ahead of time, and this is what the NSA in America has been doing for some time – along with, most likely, many other security agencies as well.  The extent to which the State can, remotely, be actively aware of our most private affairs, of our deepest secrets, is quite disturbing.

tom cruise reads the future
Tom Cruise reads the future in Minority Report. In the story, originally written in 1956, the Department of Pre-Crime arrests people for things they’re going to do.

Historically, law enforcement would act on tip-offs, warnings, about potential threats.  Mostly, however, they chased bad guys after they’d done bad things.  It was a reactive investigative function – after something bad happens, you hunt the bad guys down, and lock them up or execute them.  That serves both as punishment and as deterrent.  The significant shift that has happened is that technology allows law to be investigatively predictive – systems can be put in place to monitor everything, and look for patterns that are likely to be predictors of crime or terrorism.  It’s what Science Fiction buffs would call Philip K Dickian, a clumsy phrase named after the author of The Minority Report, a short story from 1956 (and a movie from 2002) where the department of pre-crime arrested people before they committed violent crimes.

The chief of the NSA, General Keith Alexander, put it pretty well earlier this year as he explained – ‘in order to find the needle, you need the haystack,’ he said.  So they need to know everything about everyone before they can determine interesting things about someone.  The problem, of course, is the determination of ‘interesting’, and who is in charge of that.  So let’s just say it’s fair enough to predict someone who’s going to bomb a building.  We need to do that.  What about someone who’s going to assassinate a politician? OK.  What about someone who’s going to shoot their wife’s lover?  Someone who’s going to rob a liquor store with a gun?  With a hammer?  What about someone who’s going to defraud the revenue commissioner?  A Bernie Madoff person perhaps?  the same infrastructure that is deployed to catch terrorists with bombs can be used to drive extraordinary efficiency in the running of the state, and in the administration of justice.  But it’s not just spooky anymore, it’s potential harmful.

The state needs to be very, very strong in order to support such an infrastructure.  To maintain its legitimacy, it will need to be clear about its intentions, and build trust.  Just as trust had been ebbing away as a prerequisite for legitimate government, suddenly we see it becoming more important again.  The state will have enormous power in the new environment of big data.  In order to have us all willingly subject ourselves to it, it’s going to have to be squeaky clean.  Zizek argues that the concealment of the laws that support big data monitoring are leading us towards arbitrary despotism, Quoting Kant on Public Law, he says “all actions relating to the right of other men are unjust if their maxim is not consistent with publicity.” In order words, secret laws are unjust.  If they are secret, to whom are they known?  Can computers, in their automated detection of patterns from data, determine de facto laws that no-one actually knows about?  think about that for a minute – we could all of us end up in jail, and none of us would know why.  Now that puts the Y2K bug into perspective!

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