Case Study on Democratic Self-Governance: NSA Oversight, a Straight Game of Poker?

If there is a religion in the modern world, it is the fanatic belief in democratic self-governance.  From a philosophical perspective, the legitimacy of democratic self-government requires the notion of a public forum – a democratic corpus, a public sphere formed by citizens, if you will – to frame, debate and discuss political issues and events, free from “government interference.”  This might be called a public sphere of privacy (privacy from government), rather than a private sphere of privacy (privacy from other citizens), and is essential to the working of a democratic government. It is of utmost importance to keep this public sphere vibrant and pure because in today’s paradigm, all governments have a tendency to to intrude, dominate, and control for its benefit at the expense of that of the people.  And a democratic government means little if people’s thoughts and voices can be manipulated, coerced, manufactured, or censored.  A belief in the vibrancy of the democratic corpus to deliver good governance (with that, justice, prosperity, “freedom,” and peace) represents the very soul of the modern democracy religion.

Yet, when you look around you and think for a minute – things just don’t add up.  The latest NSA revelations provides a useful case study.

Recently, the Guardian, the New York Times, and ProPublica, based on Snowden’s revelations, reported how the NSA has spent millions to crack the encryption systems that citizens around the world have come to rely on for conducting themselves on the Internet.  If you through PRISM was big, this is much bigger.  The U.S. government spent some whopping $250 million per year, dwarfing that of the Prism program (which cost only some $20m a year) to de-crypt Internet communications around the world.

For years the Internet stalwart companies of the “Free World” have urged citizens around the world to trust them because they operated according to the highest democratic principles, value people’s privacy, and have implemented their platforms around technologies that will make your data indecipherable to criminals and governments.  But now we are finding that this is all a charade. Almost all Internet companies that matter (including Google, Yahoo, Microsoft, Apple, Facebook, Twitter) have chosen to work with the U.S. government to create weaknesses in their platforms – essentially to create “back doors” – to enable the U.S. government (and depending on the circumstances, some of its allies) to snoop private data such as communications, banking and medical records, etc.

The U.S. government, of course, says this is all necessary to catch the few bad apples – the “terrorists” – out there.  The U.S. government has even gone as far as to decry the latest Snowden revelations as a danger to national security. According to the U.S. government, most people – you known, the good guys – have nothing to fear.  Secrecy is deemed important for the effectiveness of the NSA program, and the U.S.government is capable of regulating itself – outside of public scrutiny (of its own citizens and the world as a whole) – to make the right balance between surveillance and privacy – and to target just the bad guys.

For those in the know, what the NSA is doing represents an unprecedented existential threat to modern democracy.  Once we accept that something as far-reaching as the NSA has a legitimate role in democratic governance, we are on the way to giving up on the notion of an independent democratic corpus.  The U.S. government already routinely manipulate opinions on the Internet (see also this) in the name of national security.  With NSA, a democratic government now can legitimately mold the democratic corpus – including the targeting and surgically removing of dissent – unilaterally and free from public sight.

It is interesting to note that the intrusion we are talking about here is much more insidious and far broader than the “real name” registration that made such a big wave in media coverage of China a year or so ago.  What the NSA is engaged in is real name registration plus real data theft – done in a secretive fashion.  The full extent (and specific details) of the program are yet to be revealed, but we know it spans every corner of the Internet you can think of – social media, emails, cloud drives, instant messages, phone conversations, etc.  And it does this all without consent – unlike “real name” registration, which is very open and transparent – requires user participation and consent – and is explicitly limited to a few publicly announced platforms.

Instead of alarm bells, what we hear instead is a deafening silence. Yes, some op-eds may be written, and some netizens will complain, but there has been little political outrage. Isn’t it amazing how many would advocate fighting and imposing democracy on faraway lands and yet retreat from fanaticism when their own safety is at stake?

Some have even used democracy itself to justify the outright undemocratic nature of the intrusions.

The Economist argued for example that “[f]or all that privacy advocates dislike them, the NSA and its allied agencies are at least subject to some kind of democratic oversight, thin and imperfect though it may be.”  Some might even add, hey at least the press is reporting on these uncomfortable things.  It demonstrates the vibrancy of democratic oversight.

Except … there are no such thing as democratic oversights!

We can start with the media (the so-called the fourth estate).  Despite the recent shocking allegations about NSA, what is revealed has already been vetted by the U.S. government. ¹  Snowden – despite the portrayal by some as a traitor – has actually chosen to reveal his “leaks” to only select Western news organizations, which would be hard pressed to be truly critical in a way that endangers the U.S. (by way of contrast, almost accusations against Chinese lack of Freedom of Speech are made on issues that threaten Chinese security.)

Just as the large Internet companies have all been co-opted by the U.S.government, so have media companies.  They have no choice.  When you are big enough, when you matter, you cannot afford to antagonize the government under whose jurisdiction you operate because you are such a big target that the government can always make your life very difficult if you choose not to cooperate.  The nature of what is revealed to the public will thus always be sanitized.

What about legislative oversight?  This is truly an oxymoron term to me.  When is the last time that politicians running for elections, seeking votes, are known for their honesty or integrity?  In democratic societies, lying is now a default a job qualification of politicians.  Elections have all but degraded into a reality T.V. circus to chase the vote – with campaigns in a constant race to top each other on who can make the most sensational and obnoxious lies.  Elections is now an open unregulated bazaar for sleazy politicians to sell hapless citizens feel-good messages, however temporal and superficial.  And we think this process and these politicians can represent any sort of democratic oversight?

Let’s assume the people’s will can be properly expressed and channeled through modern elections, and that we do end up selecting upstanding and capable leaders who will fight for the public good to Congress.  Even then, there is little guarantee that these members will not succumb or be stymied by the corrupting influences of democracy – the all-pervasive special interests.  What kind of oversight can Congress exert when the Director of the national intelligence could openly lie and mislead Congress with impunity and when they can be routinely blocked from questioning and reviewing NSA activities?  What kind of public service can the public expect politicians to pursue when the game of the democracy has become one-dollar-one-vote?  Assuming there are true public servants in Congress, what can they do against the military-industrial-complex that has all but captured the political process in the U.S.?  To the extent legislative oversights exist, they appear superficial and spotty at best.

What about judicial oversight?  The problem with judicial oversight is that the oversight of NSA is that it involves dealing with substantive political, not just technical legal, issues – in secrecy.  Judges are not any better trained in dealing with the intricacies of national security as citizens. And judges in general do not have special or higher moral compasses than citizens.  Inevitably, judges will go along with whatever NSA wants as long as the NSA follow certain technical formality. No judge will ever raise jeopardize their careers trumping national security concerns that are alive and well in the political arena. The result is that the government can and will routinely mislead the courts and courts will be for the most part powerless against abuses.

To drive home the joke that is democratic oversight, I want to conclude with a note on Senator McCain.

Just a few days ago, Senator McCain (Republican choice for Presidential Candidate for 2008) was caught playing games on his smart phone during a Congressional deliberation on whether to bomb Syria.  I don’t know about you, but I think deciding whether to bomb a nation to pieces, involving collateral damage of millions of civilians and children killed (if Iraq and Libya are any guides), is serious business.  Yet, McCain’s response to seeing picture of him playing game being tweeted around is:

Scandal! Caught playing iPhone game at 3+ hour Senate hearing – worst of all I lost!

He would later explain:

“As much as I like to always listen in rapt attention constantly (to) remarks of my colleagues over a three-and-a-half-hour period, occasionally I get a little bored and so I resorted” to poker, a flushed but chuckling Sen McCain told CNN.

If this is the type of cheek-in-tongue oversight we have for a President-gone-mad-wanting-to-bomb-another-hapless-Middle-East-country-a-la-Iraq-and-Libya, what should we expect of the oversight over NSA where, arguably (even if stretched very thin), real national security might be at stake?  If democratic oversight is what I have described … democracy legitimacy is but a charade.

Very, very few (if any) citizens have the time, or resources to be vigilant oversees of their government, much less to vigilant warriors against government encroachment and manipulation.  People looking to civil societies as a solution makes the same mistake as religious devotees entrust the Church to provide spiritual guidance, placing faith in institutions of men that are ultimately beholden to specific ideologies, creed, and interests (not to say of power and money also), not universally the people as a whole.

Wouldn’t an authoritarian model like that followed by the Chinese government serve the people better?

In authoritarian societies, at least we openly concede that the people often need to be guided and protected – not manipulated or controlled per se – but protected, nurtured, and ultimately empowered by a patronizing entity we call the government.  We do away with the dangerous illusion that good governance can only and will spontaneously arise through elections.  The fact is that throughout history, without good patrons, the people have always been pawns of the powerful.  And people often need to be protected from themselves (the strong will always prey on the weak, and few will ever fight for the common good).  Under a meritocratic and morally upstanding authoritarian model, at least we would know where the buck stops.  It stops with leaders whom people entrust governance and look up to and demand special civic responsibilities.  In electoral democracies, it’s hard to know where the buck stops … and when those in power are just playing a game of poker behind our backs…