The DEA secretly instituted a
mass surveillance program—and almost no one objected, even after it was
revealed.
Few in public life are as
contemptuous of privacy as Stewart Baker, an attorney whose career has included
stints at the NSA and Department of Homeland Security. He is a staunch defender
of most every U.S. government surveillance effort. As Americans expressed alarm
at the scope of spying revealed by Edward Snowden, he delivered a speech
asserting that they were engaged in an irrational moral panic.
But even this man, who believes
that bulk, warrantless surveillance is fine under the Fourth Amendment,
acknowledges that the Drug Enforcement Administration deserves censure for
secretly operating surveillance programs. In fact, he believes that the DEA's
behavior was egregious enough that the public's failure to respond more
forcefully calls the value of transparency itself into question.
Yet he isn't personally
condemning the DEA.
Why?
* * *
One of my disillusionments is
the failure of governing elites to speak out against one another's bad
behavior. An extreme example is the CIA's torture of prisoners, which involved
the complicity of lawyers, medical professionals, and legislators, many of whom
kept their mouths shut even after interrogations ending in death. Some
governing elites still work to ensure that no torturers will be punished.
I want to look at a much less
extreme example, because I think it is more typical. The person I'll focus on
is not a villain. But I do think he is unwittingly failing a civic obligation,
despite his admirable willingness to participate in public life.
Baker attended law school at
UCLA, clerked for Supreme Court Justice John Paul Stevens, and served as the
NSA's general counsel from 1992 to 1994. Before and after his time in
government, he built a private practice at the law firm Steptoe and Johnson, focusing
on national security, electronic surveillance, export control encryption, and
more. He also served as an assistant secretary at the DHS under President
George W. Bush. And while he's since returned to private practice, he's an
active participant in public discourse surrounding NSA surveillance. I've seen
him speak at The Aspen Ideas Festival and UCLA law school. He hosts a podcast
for his law firm and blogs at Lawfare and the Washington Post.
Almost always, I disagree with
him, but that is irrelevant here. He believes that intrusive government spying
is both legal and necessary for maintaining national security. I dispute his
logic, but cannot fault him for voicing his conclusions. What I do fault is his
failure to forcefully object to the U.S. government's behavior on certain rare
occasions when even he thinks it has gone too far.
So we return to recent
revelations that the Drug Enforcement Administration has spent many years
engaged in the bulk collection of both phone records and license plate data.
These news stories have been
discussed on successive episodes of Baker's podcast, where he makes clear his
position that these tactics shouldn't be considered a violation of the Fourth
Amendment. Unlike Supreme Court Justice Sonya Sotomayor, who has expressed
discomfort with prevailing executive branch logic, Baker believes that civil
liberties ought to be safeguarded by limiting how metadata in the government's
hands can be used, not what can be collected, and that even a nationwide system
of cameras that snap photos of license plates to track the movement of cars
isn't a violation of Constitutional privacy rights since everyone puts their
license plate on their bumper for anyone to see.
Baker also recognizes that even
if these practices are constitutional, that doesn't resolve the separate
questions of 1) whether they are prudent policy, and 2) whether it was
appropriate for the DEA to implement them in secret. That's where I want to
focus. On Baker's podcast, Rebecca Richards, the Director of Privacy and Civil
Liberties at the NSA, discussed that surveillance agency's need to maintain
some secrecy even as it offers the American public an undefined degree of
transparency.
In that context, Baker said,
"My faith in transparency is shaken by these DEA stories. They hid this
not even classified—this was law enforcement sensitive—program, they kept it
hidden for 25 years, it was a mass collection of data in support of a legal
regime that is deeply controversial. Colorado has opted out of the regime. And
the reaction, unlike the reaction to NSA, has been, 'Oh yeah, cops do
that.'"
That aside struck me so
powerfully.
Out of nowhere, Baker adeptly
summed up why the DEA's behavior was objectionable: In a country meant to be
governed by the people, it hid a program with huge privacy implications,
knowing full well that it would be deeply controversial, despite the fact that
it wasn't classified or vital to national security. That was objectionable,
even if one thinks the program was legal and effective.
As noted, Baker went a bit
farther. For him, the very value of transparency got called into question when
no outcry was sparked even by a program with all those strikes against it.
While I agree that these
revelations about the DEA made barely a blip in the news, and that they ought
to have sparked a bigger outcry, objections have been raised. Last month, I
wrote that the DEA's behavior was "an affront to self-government."
The American Civil Liberties Union said, "It’s unconscionable that
technology with such far-reaching potential would be deployed in such secrecy.
People might disagree about exactly how we should use such powerful
surveillance technologies, but it should be democratically decided, it
shouldn’t be done in secret.’’
The sorts of writers,
publications, and civil liberties organizations that typically object to
government overreach undertaken in secret sounded all the usual alarms.
But Baker didn't forcefully
object to the DEA's behavior at the Washington Post or Lawfare. He didn't use
his significant influence among elites to publicly shame the DEA. He hasn't
championed ways to ensure such anti-democratic behavior doesn't happen in the
future, unless he has undertaken such a campaign in secret. And in his silence,
he has behaved much like the rest of his tribe of lawyers and civil servants
who've become insiders in the national security state—a tribe that behaves as
if the responsibility to criticize and fight objectionable behavior of this
sort is best left to civil-liberties organizations and journalists.
This is a tribe that has lost
the inclination to police itself.
Baker understands the problem
with the DEA's behavior well enough to pinpoint it, but despite being a
prominent voice in public discourse, he never thought to strenuously object,
even as he scoffed at the public for not objecting more strenuously. Indeed, he
only noted the factors that made the DEA's behavior so at odds with democratic
values as an aside, to cast doubt on the value of transparency at the NSA. And
even that is more than most in his tribe have done.
When a prominent attorney and
former appointee sees a government abuse more clearly than his fellow citizens,
is he obligated to raise his voice against the abusers? I'd argue that doing so
is a civic obligation—and that the obligation is particularly acute for people
who advocate for a powerful, opaque national security state, dismissing
warnings that the federal government is too vulnerable to abuses. The
assurances Americans are given about agencies like the NSA, FBI, and DEA ring
hollow precisely because elites so often prove unwilling to hold them
accountable—even elites who are otherwise committed to serving their country.
