A Guide To Thinking About NSA Surveillance And Democracy

CREDIT: Flickr user Johan Oomen

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CREDIT: Flickr user Johan Oomen

The National Security Agency’s (NSA) massive, secret surveillance program raises some pretty basic questions about American democracy. Media scholar Jay Rosen puts it this way: “Can there even be an informed public and consent-of-the-governed for decisions about electronic surveillance, or have we put those principles aside so that the state can have its freedom to maneuver?”

The issue’s actually more basic that Rosen makes it to be. Spying itself is intrinsically at odds with democratic governance and yet simultaneously something virtually all of us believe the state should be doing, at least to a certain degree. Understanding how to square that theoretical circle clarifies how we should think about the relationship between democracy and the NSA.

Democracies, like plants, thrive on sunlight. The heart of a democracy, the idea of government by the consent of the governed, requires that the governed know enough about how they are being governed in order to give real consent. If the government wouldn’t tell me, say, what it was doing with the economy, it’d be hard to argue that I was consenting in any real sense to the economic policies of the current government.

Spying is by its very nature antithetical to this basic democratic principle. The CIA, NSA, DIA, and all the other sneaky government organizations whose acronym ends in “A” need to do their work in secret for it to be effective at all. An operation to, say, sabotage Iran’s nuclear program with a computer virus is not the sort of thing that can be announced publicly before launch. So long as we think that some kind of international spying and covert operations is critical to national security (which, even if the specific Iran example isn’t, it in principle almost certainly is), then it seems like we’re consigned to a future in which a significant part of the government is tasked with doing things that can’t in principle be democratically authorized by American citizens.

The easiest way to solve the problem is to draw on the justification for representative democracy itself. All modern democracies are government by elected officials, not referenda. A small group of (generally privileged) people making decisions for the whole country is considered democratic only because the people democratically endow their representatives with the right to make policy through a vote, after at least nominally hearing about their beliefs.

You could think about the basic democratic justification for the NSA as an extension of this principle: the voters elect representatives who are OK with covert surveillance, and by extension, authorize the existence of covert surveillance. The president and/or Congress, together with the judges and agency heads they install, serve to make the decision as to what the appropriate scope of covert activities should be with the people’s consent.

So in theory, that’s how secret spy agencies and democracy uneasily coexist. In practice, spy agencies often overreach and legislators are often idiots. Democratically authorized though they might formally be, covert operations can’t be assumed to be operating within acceptable bounds because they, by their nature, endow the state with power that can be used to subvert democracy in secret. One needs only to J. Edgar Hoover’s tenure at the FBI to see how otherwise legitimate intelligence and policing tools can be turned against the democratic process itself.

That kind of power requires two further checks, then, to be considered presumptively legitimate in a democracy. First, as much sunlight on the NSA and other spook agencies as possible without compromising legitimate missions. Second, sufficient neutral, internal oversight on the spy activities that really can’t be made public. Tell the public as much as you can and tell the rest to a strong auditor.

So what does this theory of spying and democracy tell us about the NSA and Snowden? For one thing, that the problem isn’t, as Rosen suggests, an intrinsic conflict between “electronic surveillance” and “state maneuvering.” Electronic surveillance is merely a subset of broader covert operations; so long as you think covert operations are at all democratically legitimate, then there’s nothing unique about the NSA’s work, or the CIA’s, or so on. In principle, they all raise the same basic question, meaning that focusing on “electronic surveillance” in general is a red herring.

The real issue in the NSA case, instead, is oversight. Rosen cites several persuasive reports (including this very good Adam Serwer rundown) suggesting that neither Congress nor the Foreign Intelligence Surveillance Act (FISA) courts were providing meaningful internal checks on the NSA programs that the President had decided couldn’t be disclosed publicly. This means that a basic link in the democratic accountability chain is broken, calling any claim the NSA surveillance regime had on democratic legitimacy into serious question. The most pressing question about NSA reform, from a democratic point of view, is what institutional mechanisms to improve public transparency and internal oversight could be created to limit future abuses. Debating the particular programs in question in this case, while important, risks missing the democratic forest for particular trees.