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The Unbridgeable Chasm in the Surveillance Debate

Josh Scheinert on what the latest Munk Debate tells us about the quest to legally and responsibly balance the need for security and privacy.

By: /
7 May, 2014
By: Josh Scheinert
Lawyer practising international law in Toronto

The current state of government surveillance and the massive intrusion into our privacy is not going to change anytime soon. This past Friday, a chance to move the debate constructively forward was missed.

On May 2 in Toronto, retired General and former CIA and NSA Director Michael Hayden took the stage with Harvard Professor Alan Dershowitz to debate journalist Glen Greenwald and Reddit co-founder Alexis Ohanian on the topic of state surveillance at the Munk Debates. The fact that Greenwald told a Canadian paper he considered Hayden and Dershowitz “two of the most pernicious human beings on the planet” whom he finds “morally reprehensible” meant the evening was bound to provide at least some entertainment.

It did.

More important, however, was the evening’s takeaway. The quest to legally and responsibly balance the need for security and privacy continues to be just that. On one side we’re left with “trust us” while paying lip service to a commitment to balance rights with security. And on the other, a discourse filled with superlatives—the architecture of oppression.

It was a display in which each side clung to moral absolutes and refused to acknowledge the underlying pretexts behind the other, swearing off the empathy that might help us bridge what is fast becoming an unbridgeable chasm.

General Hayden began the debate. He launched into rhetorical questions about the meaning of surveillance—meant to remind us, rightfully so, that surveillance can and should play a valuable role in keeping us safe. But if he really wanted to convince the audience of the necessity of the type of state surveillance he oversaw, he should have began with apology. When going forward we are invariably being asked to once again “trust us,” the man responsible for an enormous betrayal of the public trust and abuse of state power needed to acknowledge that.

The shortcomings were not General Hayden’s alone. Professor Dershowitz brought up the interesting point that, notwithstanding the gross abuse of state power and overreach, the motives (or pretext) behind the surveillance program and those executing it were noble—or at least benign. To Professor Dershowitz, protecting Americans from terror is a justifiable pretext for a national surveillance program. The overreach, illegality, and ineffectiveness of portions of the program mean it needs to be refashioned and reigned in. (Though his previous dabbling into legalizing torture undermines the claim that he seeks to work within the rule of law rather than establish a new one.)

Dershowitz’s attempt to reach across the aisle was rebuffed. Demonstrating an academically admirable ideological purity but a practically lamentable stubbornness, Greenwald refused to concede. Proclaiming that he doesn’t care about motives or pretext, he said it didn’t matter to him why President George W. Bush or, pretending to ignore the man sitting behind him, Michael Hayden, invaded and ruined Iraq or tortured people.

That was the moment, the second time during the debate when humility was passed over, where everyone—meaning we the public, our societies, and the rule of law—lost.

The genie is out of the bottle. State surveillance, collection of metadata, and infringement of our right to privacy is going to continue. The only questions are to what extent and under what circumstances—the law’s never-ending search for proportionality. That is the debate that needs to be had, and urgently.

To justify the collection of metadata, Professor Dershowitz used the metaphor of street cameras, which he claims deter crime. Pedestrians who walk in front of street cameras give up some of their privacy in the name of security. The Internet should be no different, he said. But Greenwald then reminded us why Internet surveillance is different than watching people walk across the street—it constitutes an invasion of privacy that goes to the core of who we are given the amount of information provided to online spaces.

General Hayden needs to understand that. Yet, without an acknowledgment to the extent to which our trust was breached—and precisely because mass Internet surveillance and collection of data is, to quote Greenwald, an “invasion of our minds and thoughts”—it is unclear whether Hayden does, in fact, understand the gravity of his former Agency’s practices. That unwillingness or inability to come to terms with the pretext for the widespread cynicism on the part of skeptics of the surveillance programs is an institutional shortcoming that only legitimizes the lack of trust that “the watched” have towards “the watchers.”

Similarly, Greenwald’s refusal to legitimize the pretext of the surveillance program, or even acknowledge that it matters, compromises his ability to ensure proper safeguards are put in place and the snowball doesn’t get further away from us. When Greenwald talks about protecting us from terrorists he speaks about “men in caves” and says that past means of surveillance that kept us safe from the Soviet Union’s “evil empire” are sufficient. But the Soviets didn’t use Gmail or AT&T—and not all terrorists live in caves.

Unfortunately, Friday’s debate in Toronto was about one side beating the other (the anti-surveillance side won, for those keeping score). But if we are going to have this debate seriously, we’d realize it’s not about finding a winner, but about finding a solution.

A version of this piece was published by The Huffington Post on May 5, 2014.

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