The national-security bureaucracy and its sweeping powers are not much different from the domestic regulatory state, in that the former, like the latter, tends to grow and assume more power over time in an organic fashion. A bureaucracy is created to address some crisis, but once that crisis has ended, the bureaucracy remains and finds new work for itself. Containing a bureaucracy is always hard, even where no secrecy is involved.
Here’s the picture to keep in mind when considering today’s national-security apparatus. First, most of it was built during the Cold War for the purposes of winning that conflict. The National Security Agency’s prowess with intercepting electronic communications of all kinds had a particular purpose. Every foreign government and non-state entity was fair game, though neither foreign nationals nor their signals were necessarily geographically restricted. There was always incidental pickup of U.S. citizen communications.
Second—and this is a point brought out in Barton Gellman’s invaluable book Angler—the national-security reforms of the Watergate era branded the brains of Republicans like Dick Cheney. They saw two presidents, Nixon and Ford, crippled in their ability to wage the Cold War by legislative meddling. Cheney, for one, believed that the presidency and the agencies serving it had to be restored to the level of power they had wielded before Nixon’s disgrace.
Third, prosecutors and investigators at all levels have a professional interest in wider surveillance, and long before 9/11 they were fishing for pretexts that might reward them with Patriot Act-like powers. Threats of turn-of-the-millennium terrorism looked like a magic lamp that might grant every wish, but it turned out to take a real act of terrorism on 9/11 to fulfill long-thwarted professional fantasies. After 9/11, who was going to say no? Who would dare even question the expansion of domestic surveillance and police powers?
Before 9/11, there was political will (from the likes of Cheney), technical means (the Cold War intelligence infrastructure), and professional interest (on the part of domestic law enforcement and regulators) for weakening the distinctions between foreign surveillance and domestic intelligence gathering. Until 9/11, there was also resistance—but immediately after 9/11, all that dissolved. There was no debate commensurate with the gravity of what was being done. Congress was compliant and the press, including the nascent blogosphere, was doubly so. Pundits were falling over one another in those days to see who could endorse torture quickest.
A dozen years later, a great many Americans would like to have the debate that wasn’t heard in 2001. But the laws and executive decisions made a decade ago involved—sometimes with good reason, sometimes with no reason—many layers of secrecy. Debating secret actions before they were taken might have been one thing: difficult, but not impossible. But how do you debate a deep-secret state after the fact while respecting its secrecy?
There’s no lawful way to do it. The scope of the NSA’s surveillance power wasn’t a surprise to, say, James Bamford or his readers, but carefully explicated (and officially denied) analyses could never have the impact of presenting the classified material that Snowden released. Official denials were useless once Snowden went public.
One need not like the betrayals of trust and the risks imposed on innocent people by the actions of leakers like Manning and Snowden. But no one has made a plausible case that the discussion the country is having now could be taking place without them. And quite clearly the harsher critics of Snowden and Manning subscribe to Dick Cheney’s mentality: they would prefer that these questions never come to light and that the executive branch have only token accountability to Congress and the public. That’s a point of view, but not one consistent with free and representative government.
The debate on what surveillance powers over citizens its proper for government to have, and what safeguards must be in place, must take place. And it’s taking place now under the only terms on which it can happen at all.