In his NSA Constitution Day speech, and in a follow-up post last week with Ashley Deeks, Ben offered this “tentative hypothesis” for why the intelligence community, and NSA in particular, engenders so much distrust among “reasonable” Americans: whereas most of our laws (theoretically) apply to people irrespective of race, class or gender, the intelligence community does not operate under even facially neutral principles.
To explain what they mean by non-neutrality, Ashley and Ben write: “When it comes to the intelligence community . . . the law allows those actors to do things other people cannot.” They go on to note that this definition raises a question: why does the American public consistently rate so highly the U.S. military, an institution whose members necessarily detain and kill people with legal immunity? Their answer: “while U.S. domestic law is not neutral in regulating the military, the international law that regulates the military does, in fact, contain neutral principles—principles with which the U.S. military, as a general matter, scrupulously abides.”
I think this definition of non-neutrality may be too broad to be meaningful. That is, I don't think the fact that the intelligence community can lawfully do things forbidden to others satisfactorily explains Americans' deep misgivings about the intelligence community, any more than it accounts for the public's currently low opinion of law enforcement (also permitted, in their official capacity, to do all sorts of things the average citizen cannot do). Nor is it clear to me that the development of neutral principles, on the domestic or international plane, would help relieve the public's misgivings. Here I point to certain neutral principles already in place to govern NSA activity, including but not limited to complex compliance requirements for the collection of Section 215 telephony metadata; these don't appear to be improving NSA's popularity (I think Ben is right to suggest, elsewhere in his speech, that their complexity is part of the problem, but there is more to it, as I note below).
So allow me to tweak the theory. I agree with Ben's contention that the U.S. intelligence community operates largely according to “non-neutral” principles, but by non-neutral, I mean that the intelligence community’s raison d’être is to pursue zero-sum security objectives—like “steal" secrets—that worry us, even outrage us, where directed by anyone against Americans or the United States. In his NSA speech, Ben provides an example that nicely captures the emotional expression of this non-neutrality: he notes the happiness he would feel should a Chinese Snowden turn up on our shores with a trove of Chinese secrets, and he concedes this happiness is totally indefensible from a neutral perspective—that is, when set alongside his displeasure about the actual Edward Snowden disclosing U.S. secrets.
That said, it doesn't quite work to draw a straight line from NSA non-neutrality to American mistrust of NSA. I say this because I imagine most Americans don’t actually have much difficulty accepting the proposition that the American intelligence community must retain some ability to go to extraordinary lengths to maintain an upper hand on foreign countries and foreign threats. I would go so far as to say that this acceptance derives not simply from a self-interested desire to ensure American’s continued dominance on the international stage, and pragmatic urge to counter other countries' intelligence maneuvers, but also, I think, from our genuine belief in the moral superiority of our national values and aspects of our national agenda. This is as compared to the ambitions of, say, Russia or China, governments that strike many Americans as oppressive and, should their influence go unchecked, dangerous.
[Some polling data, in case my gut feelings don’t really do it for you: In a 2010 Gallup poll, 80 percent of respondents agreed that the U.S. has “a unique character that makes it the greatest country in the world.” A 2012 Gallup poll showed that though less than half of respondents considered the U.S. system of government the best or above average among nations, 77 percent thought that the “individual freedoms” on which our republic is founded are “the best” or “above average.”]
I note Americans’ moral commitment to American values and reluctance to entirely do away with American intelligence because all this get at an important distinction that I think must be made if we are to understand the public's hostility toward the intelligence community. We seem to be quite comfortable with the idea that our intelligence community must engage in non-neutral judgments and exercises of power, where those efforts are directed against foreign governments and in particular against hostile foreign actors. This changes when we perceive the U.S. intelligence mission as improperly bleeding into the domestic realm.
This is my wholly unremarkable qualification of Ben’s hypothesis: the American intelligence community engenders a great deal of distrust because Americans perceive it as having expanded beyond its non-neutral foreign mandate, wrongfully directing part of its efforts and many of its tools against Americans and facilitating covert activities even within the borders of the United States. We are deeply suspicious of an intelligence community whose outward gaze appears to have turned impermissibly inward, quietly targeting American communications, entering American homes and controlling American behavior.
So doctored, this explanation for Americans’ extreme distrust of the intelligence community links up neatly with an issue that Ben flags toward the end of his Constitution Day speech as something that we need to address if we are going to move toward relieving the distrust. I'm talking about the breakdown of the 1978 compromise, as embodied in the original Foreign Intelligence Surveillance Act.
Ben identifies three elements of the compromise. I want to focus on two of them. The first element of the compromise is that the borders of the United States really matter: or to paraphrase Ben, the government has long been able to do things outside the U.S. that it really cannot get away with within the U.S. The second element is the distinction between U.S. person and non-U.S. persons; there are things the government cannot do to citizens and permanent residents within or outside U.S. borders.
I would be willing to venture that to the average American, these distinctions appear to have lost much of their power post-9/11.
Why is that a problem? Because it is difficult to maintain faith in a legal regime under which ordinary governmental authorities must abide by “neutral” principles and limits but clandestine authorities seem to operate under different, incomprehensible principles and limits—that is, unless the jurisdiction of the clandestine authorities is clearly and believably cabined. This point may seem stupidly obvious when so stated, but it doesn't get quite the recognition it deserves. I want to note here the parallel between my point and an argument articulated by Jack Goldsmith in a different context (with which Ben agreed last Thursday in his testimony before the House Committee on Armed Services). Jack argued a couple weeks ago that “any limitations on Congress’s authorization in the draft ISIL-specific AUMF are meaningless, since the President can simply revert to reliance on the 2001 AUMF as an independent basis of authority for any actions not authorized by the ISIL-specific AUMF.”
Jack’s observation is an easily generalizable point of logic. The fact that one authority confers limitations on the government’s ability to do X means nothing so long as another authority confers on the government comparatively unbounded power to do X. Whatever trust Americans put in the neutral rule of domestic law as enforced by ordinary legal authorities is corroded by the American perception that in special circumstances involving an alleged danger to national security, the intelligence community claims the authority to invade American spaces, monitor and restrict American speech, and detain or kill Americans apprehended outside the United States by extraordinary processes seemingly not contemplated in the Bill of Rights.
Let’s leave aside dramatic examples like the 2011 CIA-led killing of Anwar al-Awlaki, and the second CIA drone strike two weeks later that left his 16-year-old American son, Abdulrahman, dead and his family without legal recourse. Consider instead the AP's report that same year on the NYPD intelligence division's efforts to map the Muslim community as part of a program developed in close conjunction with the CIA. Or consider the expansive use of National Security Letters after September 11, through which the FBI has not only compelled thousands of private companies and individuals to hand over information in connection with authorized national security investigations but also prevented the letter recipients from disclosing that the FBI has requested the information at all. I think it’s fair to say that these are intelligence measures that strike many Americans as an abrogation of their constitutional rights. At the very least, they are perceived as un-American in spirit.
In sum, bias helps power our belief in the need for NSA, and the flip side of that bias is our indignation at the prospect of being the target of NSA’s special powers. To gain the trust of the American people, the intelligence community must be understood as being governed by hard, intelligible jurisdictional constraints. And in the post-9/11, post-Wikileaks and post-Snowden era, it will be harder than ever to persuade Americans that such hard constraints exist.