Sunday, May 25, 2014

The empire strikes back: How Brandeis foreshadowed Snowden and Greenwald

So-called liberals attack the whistle-blower duo -- and a brilliant Supreme Court justice saw it all coming

In the famous wiretapping case Olmstead v. United States, argued before the Supreme Court in 1928, Justice Louis Brandeis wrote one of the most influential dissenting opinions in the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack againstGlenn Greenwald and Edward Snowden, including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.

Brandeis’ understanding of the problems posed by a government that could spy on its own citizens without any practical limits was so far-sighted as to seem uncanny. (We’ll get to that.) But it was his conclusion that produced a flight of memorable rhetoric from one of the most eloquent stylists ever to sit on the federal bench. Government and its officers, Brandeis argued, must be held to the same rules and laws that command individual citizens. Once you start making special rules for the rulers and their police – for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years – you undermine the rule of law and the principles of democracy.

“Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

Kinsley’s anti-Greenwald screed in the New York Times Book Review, and Packer’slonger and subtler essay for the British magazine Prospect, deliberately ignore or finesse the question of what the government has taught us through its black budgets, its institutional paranoia, its super-secret and extra-constitutional spycraft. Those two articles, and others like them, amount to a sophisticated effort to change the subject on the Greenwald-Snowden affair now that its initial impact has faded, and also to reassure by way of bewilderment: In the face of all this confusion about who’s right and who’s wrong, the best policy is to keep calm, carry on and leave all this boring stuff to the experts. Instead of focusing on the larger issues of privacy, power and secrecy articulated by Brandeis or on the corroded nature of contemporary democracy, Kinsley and Packer urge us to deplore the perceived personality defects or political misjudgments of Greenwald and Snowden, and throw up a virtual smokescreen of invidious comparison. OK, maybe that whole NSA thing wasn’t super awesome – but you could be living in Communist Russia!

You know, I have some criticisms of Glenn Greenwald too, and I’d be happy to share them with you, or with him, on some other occasion. George Packer is no dolt, and he scores a few hits on both Greenwald and Snowden in his enormous and detailed article, which at least on the surface is much more evenhanded and thoughtful than Kinsley’s drive-by hackwork. But to observe that Greenwald can make infelicitous or inconsistent statements at times, or that his argument about the chilling cultural effect of mass surveillance is not well worked out, does not add up to “a pervasive absence of intellectual integrity.” For that I’m afraid that Packer – still in ideological rehab, it seems, for his “liberal interventionist” support of the Iraq War and the neoconservative foreign-policy agenda – had better look in the mirror.

When Greenwald derides mainstream journalists (in his response to Kinsley) as “jingoistic media courtiers” tasked with attacking “anyone who voices any fundamental critiques of American political culture,” he is not being polite or diplomatic, and is no doubt painting with too broad a brush. There are numerous exceptions, and as Greenwald surely knows, the newsrooms of the New York Times, the Washington Post and the Wall Street Journal have over the decades been the sites of vigorous internal debate about how best to cover issues of surveillance, espionage and national security. But as a general tendency, he’s more right than wrong, and in this instance Kinsley and Packer are fighting a vigorous rearguard action on behalf of the entrenched interests of the Beltway elite, the self-described serious grownups of the “permanent government” and their well-connected media allies.

Any pretense of a critical relationship toward power — which was once supposed to be the journalist’s role in a democratic society — has been abandoned altogether (in Kinsley’s case) or eaten away to nothing by reasonable-sounding nuance and dispassionate analysis, as with Packer. Kinsley’s review has already been subjected to widespread mockery, even by “mainstream” commentators like the Washington Post’s Erik Wemple, and no wonder; it reads as if it had been cranked out during a single Acela Express trip from New York to D.C. (and filed by the time he reached Wilmington). Kinsley appears to feel that the entire topic of Greenwald and Snowden is beneath him, and that it raises no questions to which the right-thinking people in his circle don’t already know the answers: Journalists have no special rights or privileges, David Gregory was being “perfectly reasonable” when he accused Greenwald on “Meet the Press” of being a criminal, and we simply can’t allow “newspapers and reporters to chase down and publish any national security leaks they can find.” Who gets to decide how, when and whether government secrets are released? Why, the government, of course! Isn’t it obvious? More

Dissenting opinion of Justice Louis D. Brandeis in Olmstead v. United States