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The ongoing revelations about the government's spying programs have changed public opinion on the issue, but the institutions responsible for reining them in have no incentive to act.

Cross posted from Pruning Shears.

Two recent stories have made for an interesting juxtaposition.  First, the map of America's intelligence underworld had some important contours filled in last Sunday with the New York Times' report on the secret body of law that it called "almost a parallel Supreme Court."  Then on Wednesday a Quinnipiac poll showed a substantial increase in support of civil liberties.  Taken together they might suggest a new dynamic in how the federal government relates to Americans on these issues.  

Government has historically had free rein based on a general public ignorance of the policies; it looks like going forward those policies will exist in a cloud of popular disapproval.  Such opposition puts the continued presence of the surveillance state in a new light: Following the Constitution on civil liberties and human rights has to this point basically been on the honor system.  We don't have any mechanism that springs to life when there are credible allegations of wrongdoing in these areas; it's up to the leaders in the relevant institutions to have the will to follow through on their obligations.  They will not face any sanction if they fail to, though.

For instance, look at the Convention Against Torture.  Congress passed it, Ronald Reagan signed it, and under the Constitution it is the law of the land.  Yet there have been credible allegations of torture for at least a decade now.  No action has been taken.  We like to pretend the Constitution has some sort of compulsion or force to it, but in the end it is only relevant to the extent it is willingly followed.  Ultimately, all that matters is what those sworn to defending the Constitution decide to enforce.  If officials responsible for investigating torture don't feel like investigating torture, it won't be - Constitution be damned.

Violations of civil liberties have been a little trickier for the federal government to dismiss, but so far so good.  We now have an established precedent that those who are unjustly spied on cannot show standing to sue - even when they can.  That technicality disposed of, the NSA and other intelligence agencies have carte blanche to snoop to their hearts' content.

Now that its scope is becoming clearer, though, public opinion is turning pretty decisively against it.  That is not necessarily a problem for the government.  As with torture, it is largely on the honor system.  The visible legal system has established its Helleresque logic of no one having any standing, the shadow legal system has its rubber stamp pretty much set up for drive-thru approval, and a whole infrastructure is in place according to a novel understanding of what law is.  (We've come a long way from the "tricky legalisms adopted in classified memos" that Jane Mayer wrote about in The Dark Side.)

This is the age of impunity.  If you manage to get to a certain critical level of importance, you are above the law.  It's true in the political world, as with torture and spying, and it's true in the financial world as well.  In the late eighties, the Savings and Loan crisis - which was of a far smaller scale than the 2008 meltdown - produced 1,100 criminal prosecutions and 839 convictions.  Yet the most recent crisis produced zero of either.  (And incidentally, as we approach the five year anniversary of the meltdown in October, keep in mind that statutes of limitations on what happened will begin to expire.)

Officials have not had to follow much more than their own moral compass in any of these matters.  It isn't as though anyone in Congress will go to jail for failing to provide robust oversight.  And it's not as though that body's approval rating could go much lower.  What's one more failure at this point?

But the creation of a shadow government is not going over well, and that widespread public disapproval is a new complication.  Many were initially cowed with ticking time bomb scenarios and other fearmongering into acquiescing to an awful lot immediately after 9/11.  The populace seems to be getting its bearings back, though.

Leaders could just say damn the torpedoes, full speed ahead - and that is probably the most likely outcome at the moment.  In which case, we will have begun something of an experiment: seeing just how contemptuous of the citizenry elected officials can be (and how corrosively cynical citizens can in turn become towards those representatives) and still retain the consent of the governed.

Originally posted to danps on Sat Jul 13, 2013 at 05:05 AM PDT.

Also republished by The First and The Fourth.

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Comment Preferences

  •  Nobody wants the government spying on THEM (9+ / 0-)

    Regardless of whether or not they "voluntarily" give their info to companies, I think it's reasonable to conclude that most people don't like even the possibility that some NSA operator might be snooping around on their phone or their computer.

    Breaking through the "War on Terror" propaganda dutifully put forth by our government is another matter, however.

    There's always some terrorist lurking around waiting to strike, or something.




    Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ J. Garcia

    by DeadHead on Sat Jul 13, 2013 at 05:23:09 AM PDT

    •  Or something (7+ / 0-)
      "The powers in charge keep us in a perpetual state of fear: Keep us in a continuous stampede of patriotic fervor with the cry of grave national emergency. Always there has been some terrible evil to gobble us up if we did not blindly rally behind it by furnishing the exorbitant sums demanded. Yet in retrospect, these disasters seem never to have happened, seem never to have been quite real...."
      ---General Douglas MacArthur

      Help me to be the best Wavy Gravy I can muster

      by BOHICA on Sat Jul 13, 2013 at 05:58:34 AM PDT

      [ Parent ]

  •  some interesting stuff from the recent poll: (2+ / 0-)
    Recommended by:
    danps, BOHICA
    There is a gender gap on counter-terrorism efforts as men say 54 - 34 percent they have gone too far and women say 47 - 36 percent they have not gone far enough. There is little difference among Democrats and Republicans who are about evenly divided. Independent voters say 49 - 36 percent that counter-terrorism measures have gone too far.
    While voters support the phone-scanning program 51 - 45 percent and say 54 - 40 percent that it "is necessary to keep Americans safe," they also say 53 - 44 percent that the program "is too much intrusion into Americans' personal privacy."
    43. Do you think this program is necessary to keep Americans safe or not? Yes: 54% No: 40% DK/NA: 5%
    •  If Americuns like the surveilance state, (3+ / 0-)
      Recommended by:
      danps, corvo, aliasalias

      then it must be OK - no questions asked.  Probably, hanging black folks also polled well in the south in the 50's.

    •  partisanship and predictable gender effects (1+ / 0-)
      Recommended by:
      CroneWit

      Women are more Democratic and (in aggregate) are more susceptible to pro-security messages, so with a Dem Admin in charge it's not surprising that you still see some support for surveillance-state. It would be interesting to look at the crosstabs on that survey, separating gender from political affiliation. The independent group sort of eliminates the partisan effect and in that case opinion swings against.

      History repeats itself, first as tragedy, second as farce - Karl Marx

      by quill on Sat Jul 13, 2013 at 07:26:54 AM PDT

      [ Parent ]

  •  Who's your daddy (5+ / 0-)

    baby-nsa

    Help me to be the best Wavy Gravy I can muster

    by BOHICA on Sat Jul 13, 2013 at 05:54:16 AM PDT

  •  If it is WRONG America implements it ASAP (4+ / 0-)
    Recommended by:
    corvo, quill, happymisanthropy, aliasalias

    then defends it for generations.

    if it is RIGHT, America puts it on a watch list and fights it tooth and nail.

    As Amewricans we are supposed to just sit there and take it.

    Maybe chant "shame" once in awhile to feel uppity.

  •  2007: FISA court's 'innovative' orders begin (5+ / 0-)
    Recommended by:
    quill, danps, aliasalias, DeadHead, cslewis

    Thanks, danps, for this informative and thoughtful diary, and for the wealth of links you've included.  I've saved your diary out for future research on your links.

    You link behind the words 'they can' took me to a 2007 Wired article that opens a window to an important moment in the development of the 'secrecy structure' around the NSA's surveillance state.  (And when I say 'moment', I don't mean 'instant' -- the 'moment' that began in 2007 has lasted until this year, as the link to emptywheel.net in that same paragraph shows.)

    I've bolded the linked phrase here --

    Violations of civil liberties have been a little trickier for the federal government to dismiss, but so far so good.  We now have an established precedent that those who are unjustly spied on cannot show standing to sue - even when they can.  That technicality disposed of, the NSA and other intelligence agencies have carte blanche to snoop to their hearts' content.

    I was very excited when the recent reporting on the FISA court's 'secret body of common law' (ie, precedents set in secret) began to open up that part of the opaque system of secrecy.  (I now think that those revelations are stagecraft, a managed ploy intended to get us to believe that our government is responding to us.)  

    It has become important for me to understand the history of the development of the NSA surveillance state, and the development of the secrecy structure is part of that history.  The 2007 Wired article you link to (which contains a wealth of information) opens a window to one important moment:  The moment when the FISA court came into play as a secret interpreter of surveillance law.  Here's that moment:

    http://www.wired.com/...

    In a separate lawsuit last August, Michigan U.S. District Court Judge Anna Diggs Taylor found the NSA surveillance program unconstitutional and illegal -- a decision that's now under appeal in the 6th Circuit. Facing that ruling and growing political pressure, in early January, Attorney General Alberto Gonzales essentially announced the end of the warrantless spying, saying the NSA program will continue, but would begin getting "innovative" court orders from the foreign intelligence court.

    I would imagine that those 'innovative' court orders were the blanket demands to telecoms, like the Verizon order published by the Guardian, that allow NSA to capture huge swathes of data, with their actions swathed in several layers of secrecy.  These 'warrants' from the FISA court are the basis for the government's claim that 'We can't get your info without a warrant (therefore your Fourth Amendment rights aren't being violated)'.

    This FISA court 'fix' was instituted as part of the government's response to Bush's Warrantless Wiretapping program, a dilemma which was solved by granting the telecoms retroactive immunity.

    It's my opinion that the recent spate of information about the FISA court's operations, and the involvement of the hastily-established 'Civil Liberties Board' (I forget its title, sorry) is a stage-managed ploy intended to create the semblance of greater accountability.  I fear that the outcome of this ploy will be that the FISA court's secretly-established precedents will be ratified into law as part of this moment's 'fix.

    I hope that I"m wrong.

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