The Kamikaze Option

So, the latest inside scoop is that the Republican House leadership has probably persuaded the rank and file to refrain from shutting down the government in order to defund Obamacare.  Instead:

Sources tell me the House GOP will probably avoid using a shutdown as leverage and instead use the debt limit and sequester fights as areas for potential legislative trades. Negotiations over increasing the debt limit have frequently been used to wring concessions out of the administration, so there may be movement in that direction: Delay Obamacare in exchange for an increased debt limit.

Naturally liberal commentators are shocked, shocked.  My reaction, I must say, was to say, well, duh, I knew they'd do that from the start.  Suppose you want to kill the Democrats' signature domestic achievement, but you control only one house of Congress, so outright repeal is out of the question?  Suppose it's getting really urgent because within just a few months people will start getting health insurance under it, and taking away people's health insurance is a surefire electoral loser.  What do you do?

Well, you don't make it part of a sequester deal.  Granted, Democrats want to roll back the sequester limits on spending and Republicans want to end Obamacare, or at least delay implementation for a year, but that is not going to go over as a deal.  Democrats value offering health insurance to millions, starting next year more than they value a general rollback of the sequester.  Even a proposal to delay for one year will not go over.  If you create an expectation of insurance starting next year, delaying it a year more more will create entirely justifiable anger by people whose expectations you have betrayed.  Besides, it will also allow Republicans to run for Congress next year on a promise to block the monstrosity, rather than a promise to take away people's health insurance.  Why would Democrats give them such an advantage?  On the other hand, Democrats might agree to change some of the features Republicans find most objectionable in exchange for a smaller rollback.  Most obvious would be a repeal of the fines on employers who do not offer health insurance.  But given that Democrats are generally starting to agree that that particular provision was a mistake in the first place, it would hardly count as a concession at all.  Alternately, in a sane body politic, Democrats might agree to repeal the employer finds and the contraceptive mandate in exchange for a partial rollback of the sequester.  That would require some real and painful concessions on both sides in return for enough to matter.  But Republicans are dead set against any modification of Obamacare lest modification prevent its complete destruction.  And besides, the whole deal smacks too much of politics as usual and normal horse trading, something the Tea Party opposes on general principle.

You don't threaten to shut down the government over it.  Been there, done that.  As Republicans learned the hard way in 1995, government shutdowns are unpopular, and the public tends to blame Congress rather than the President.  Democrats certainly don't want a government shutdown, but they consider it survivable.  We have endured government shutdowns before without too much harm.  In fact, it would probably be politically advantageous to Democrats.  So even a government shutdown looks too much like politics as usual.

No, what you do is threaten to refuse to raise the debt ceiling.  Government shutdown is the devil you know.  Refusal to raise the debt ceiling is the devil you don't know.  No one knows the damage it would do to the country as a whole.  Tea Party Republicans may very well gamble that Democrats in general and Obama in particular fear such an outcome so much they will agree to anything to avoid it.  They are mad as hell that their leadership backed down the last debt showdown without receiving any concessions.  And so catastrophic a threat would be a clear rejection of politics as usual and a display of inflexible "principle."  It is also something the Republican leadership knows must not be done out of the same fear for the damage it would cause.  And any deal the Republican leadership can make that falls short of the repeal of Obamacare will look to the Tea Party like yet another betrayal.

So what is John Boehner to do?  Well, all along he has had one trump he can play at any time.  He can introduce a measure without the support of the majority of Republicans and pass it with mostly Democratic votes and just a few Republican defectors.  This has often been floated as a possibility for comprehensive immigration reform.  The problem is that if it does it too often, his party will depose him as speaker and choose someone more to their liking.  And no one knows how often is too often.  The question, as Jonathan Chait puts it, is how many shit sandwiches can the leadership make the rank and file swallow.  It is perfectly reasonable for Boehner to assume that the number of deals he can pass with mostly Democratic votes before he loses his speakership is one.  Quite probably, it will also lead to to a primary challenge and the loss of his seat.  Since the style had been to give political maneuvers highly over-inflated names, like calling ending the Senate filibuster the nuclear option, or refusal to lift the debt ceiling the Armageddon option, let us call this on the kamikaze option.  Boehner is being asked to sacrifice his political career for the good of his country.

Furthermore, there is no reason to believe that Boehner's motives for wanting to hold onto his speakership are entirely selfish.  He must be worried about what will happen, both to his party and his country, if he is deposed as Speaker.  If his replacement is Eric Cantor or Paul Ryan, presumably he would not be too alarmed.  They may be harder line that he is on spending, but both understand the need to raise the debt ceiling and to avoid a government shutdown.  (They also both favor comprehensive immigration reform, but that is still in the realm of regular politics, rather than outright hostage taking).  But what if the Tea Party chooses one of its own who doesn't understand such things?  What, in other words, if the lunatics are allowed to run the asylum?  The thought must scare the hell out of John Boehner.

Well, here would be my advice to him.  Don't throw away your political career too lightly.  We must assume that the number of times you can pass legislation with mostly Democratic supporters before losing your perch is one, and save that for the last resort.  Don't squander it on immigration reform.  Don't squander it on a sequester deal.  Don't even squander it on avoiding a government shutdown.  Save it for the debt ceiling.  But if worst comes to worst, be prepared to commit political suicide for that.  Give an extension of the debt limit, if possible until after the 2016 election, but definitely until after 2014.  (I would prefer to abolish the debt ceiling altogether, but that is probably asking too much).  Think of it as taking a sharp knife away from a baby.  Or better, since the baby is unlikely to hurt anyone with a knife except itself, think of it as taking a volatile explosive away from a baby.  If the lunatics are going to take over the asylum, you can probably only prevent them for so long.  So take away the debt ceiling so as to limit the harm they can do.

My advice to Democrats:  Don't expect Boehner to commit political suicide lightly.  Be prepared to offer at least some concession in return.  And my advice to corporate interests and lobbyists:  Watch Lincoln.  See all the legal bribes they offered, in the form of cushy federal jobs.  The President doesn't have such jobs to offer anymore.  You do.  Offer Boehner and any other defectors sacrificing their political careers for the good of their country some nice, cushy jobs in industry and lobbying as a reward.  Tea Party Republicans will decry such a deal as corrupt, and they will be right.  But given the alternative, it is well worth doing.

The Republican's Real Problem

Conventional wisdom has it that the Republican Party’s problem is their base.  The base has very extreme views and will not allow any sort of compromise or politics as usual, which make it impossible for the basically sane and reasonable leadership to conduct normal politics for fear of primary challenge.  While there is some truth to this view, I suspect that it is only half the truth.  The other half is that the Republican elite (defined, roughly, as donors and think tanks, who have disproportionate influence on elected officials) are committed to some extreme programs that if seriously attempted would be highly unpopular with the general public, including most of the Republican base.

In the past, the Republican Party was an unwieldy coalition between its upscale wing that was economically conservative and socially moderate to liberal and its religious wing, that was socially conservative and economically populist.  That split no longer holds.  In fact, Pew Poll has found, solid Republican voters see eye to eye on practically all issues and disagree mostly in their intensity.  This article has found much the same -- that (white) Evangelical Christians increasingly see God as operating through the free market, which makes regulation the instrument of the devil.  (And, indeed, Pew found Tea Party types to be harder core supporters of free market economics than even small-l libertarians).  Libertarians and Evangelical Christians also share an opposition government social programs on the grounds that such things should be funded through voluntary charity.

Nonetheless, I see the potential for a deep and severe split within the Republican Party -- with the Tea Party coming down on the moderate side.  The Republican Party finds itself in the absurd position of being programmatically opposed to government spending, while having a base that disproportionately benefits from such spending.  Studies of the Tea Party grass roots explains the seeming contradiction.  The Tea Party rank and file are not, in fact, driven by a blanket opposition to all government spending, or even to all social programs.  What they oppose is programs benefiting people perceived as "undeserving." "Deserving" people are ones who have worked hard and contributed to the system.  The Tea Party rank and file support Social Security, Medicare, and veteran's benefits because they are seen as programs benefiting people who have worked hard and earned them.  (And, perhaps not coincidentally, because a lot of Tea Party members either receive such benefits or expect to in the near future).  The undeserving, roughly speaking, are the young, the poor, and illegal immigrants.  Tea Party members also oppose taxes and regulation and consider themselves socially conservative, but these are secondary concerns.  Their primary concerns are cutting spending for the undeserving and securing the border.

What this amounts to is that the Republican base is only harder core than the leadership on some issues. They may very well agree on taxes, regulation, and social conservatism.  Tea Partiers are probably harder core than conservative think tanks in opposing spending on the "undeserving."  While Republican wonks want to cut safety net spending, they usually concede the legitimacy of at least a little spending for the very poor.  The Tea Party is less forgiving.  The Tea Party is clearly tougher on immigration than the Republican leadership which, influenced by business interests, would like some sort of deal.  But above all, I suspect Tea Party extremism is a matter of style more than substance.  They hate Obama and all Democrats and want no compromise, no concessions, just all-out confrontation.   No doubt much of the Congressional Republican leadership would like a friendlier way of doing business.

But Social Security and Medicare are a different matter altogether.  Our conservative elite basically regards them as morally and constitutionally illegitimate.  They condemn Obamacare as an "entitlement."  They sometimes condemn George W. Bush for creating a new "entitlement" in Medicare D.  They lament that the trouble with entitlements is that, once enacted, they are almost impossible to repeal.  The only logical conclusion from such talk is that they regard all entitlements as bad.  Social Security and Medicare are entitlements.  The syllogism is obvious.  Paul Ryan has made no secret of his desire to turn Medicare and Social Security in to "defined contribution" rather than "defined benefit" plans, i.e., to turn Social Security into a 401-k and Medicare into a voucher system.  Eric Cantor has offered to undo the sequester cuts if replaced with equivalent cuts in "entitlements."  Does anyone doubt what entitlements he has in mind?  At least one Republican proposal for the debt ceiling is to extend it to the end of Obama's term only if he agrees to voucherize Medicare.

Meanwhile, the Republican base emphatically opposes such measures.  But this researcher finds, conservative think tanks adopt the tea party name, but have no real association with grass roots organizations and, in turn, the rank and file have little knowledge of what such groups are advocating in their name.  And there you have it.  The Tea Party grass roots will stop at nothing to repeal Obamacare, even shutting down the entire federal government indefinitely and (perhaps) even defaulting on our debt.  But it wants to repeal Obamacare to shore up Medicare.  The leadership thinks this would be a tactical error and wants to undermine Obamacare by more gradual and subtle means.  But it wants to repeal Obamacare as a preliminary to undermining Medicare.

Which, then, are the hardliners and which are the moderates?

Disloyal Opposition

So, with Congressional Republicans carrying on like, well, Congressional Republicans, it comes time once again to revisit the old topic I have considered before – when does opposition become disloyal.  I have been inspired to think on the topic by this column by New Zealand columnist Paul Buchanan, in which he describes the Republicans as disloyal.  His archetypal example of disloyal opposition was the opposition to Salvador Allende in Chile, in which the opposition sought, first to paralyze the government and make the country ungovernable, and finally an outright military coup.  Obviously, now, a coup is illegal and therefore disloyal by definition.  A few crazies in this country have proposed that a coup against Obama would be appropriate, but such views are too marginal to be taken seriously.  Intentionally paralyzing the government was legal, but it was intended to provoke a coup and therefore also disloyal.  But what of the Republicans, who are seeking to paralyze the government, but with no intention of provoking a coup or doing anything else illegal?  And what of House Republicans' attempts to use blackmail tactics to impose a program against the wishes of the President, the Democratic-controlled Senate, and (in some cases) the great majority of the American public?  Granting that the Republicans have done nothing illegal, are they nonetheless being disloyal?

Buchanan says yes.  He defines loyal opposition as:

[C]ommitment to the rules of the political game, which in democracies means adherence to transparency, honest voice, majority representation and acceptance of electoral outcomes in exchange for a chance to regularly compete for political office within formally defined timeframes and under universally competitive rules and conditions.  [Emphasis added].

By contrast, for a disloyal opposition:

The goal is to bring down the government of the day regardless of cost or consequence. Hence disloyal oppositions hold little regard for established rules and institutional norms even if it suited them when in government or as a historical precedent. The strategy is to say anything, stop at nothing, lie, cheat and if possible steal in order to undermine the government in the eyes of the public and thereby weaken its ability to pursue a policy agenda and carry out its constitutional obligations. For disloyal oppositions, politics is war and the ends justify the means.

Trying to place the Republicans on such a scale is difficult.  They cannot strictly be said to be seeking to bring down the Obama Administration.  One can imagine such an attempt even in the absence of a military coup. Suppose, for instance, that House Republicans shut down the government and declare that they will not pass any spending bill whatever until the Democratic President and Vice President resign at which point, by the law of succession, the Republican Speaker of the House will become President.*  Since the Constitution does not technically require Congress to pass any legislation or spend any money, none of this would be strictly speaking illegal.  But it would be disloyal under Buchanan's standards because it does not "accept[] of electoral outcomes in exchange for a chance to regularly compete for political office within formally defined timeframes."  It signals loud and clear that electoral outcomes will only be accepted if their party wins.  It would not technically be a coup, but it is not too hyperbolic to call it one.

Or suppose Republicans were somehow to gain a 2/3 majority in the Senate and impeach both the Democratic President and Vice President on grounds so flimsy it was obvious their only "crime" was belonging to the wrong party.  That, too, would be disloyal, because it ignores our "formally defined timeframes," i.e., that the President's term is four years, and that his successor is the Vice President.  But it would be less disloyal for two reasons.  First, if the public were to give a 2/3 majority to the opposing party, it is a strong signal that they are displeased with the President.  Maybe the opposing party can claim an electoral mandate.  Second, it is just maneuvering at the top, rather than forcing their way by threatening harm to the public (i.e., by shutting down the government).  But, by precedent set by the failed attempt to remove Andrew Johnson, it would still be disloyal.  

But the Republicans are not going that far.  They are not seeking to depose a Democratic President, merely to enacted their favored policies against his wishes.  Now clearly, in some cases doing that is compatible with a loyal opposition.  The Constitution provides that the President's veto on legislation can be overturned by a 2/3 vote of both houses of Congress, in which case the President has no choice but to execute a law he opposes.  But, of course, the Republicans do not have that.  They have a 234-201 majority in the House, which is moderately strong, but well short of the 2/3 required to overturn a Presidential veto.  And they have a 45-55 minority in the Senate.  

In 2011, they were stronger, with a 242-193 advantage in the House and a 47-53 minority in the Senate.  They had won sweeping victories (a 63 seat turnover) in the House and significant turnover in the Senate, failing to take it only because of a handful of crazy nominees.  Although Obama was still constitutionally in office for another two years, they could reasonably claim a mandate to enact their program, specifically, cutting spending.  Nonetheless, they also did not have a majority in the Senate, or the 2/3 majority in the House necessary to override a Presidential veto.  Some sort of compromise, slanted to favor the Republicans, would have been appropriate.  Instead, the Republicans rejected any sort of compromise and insisted that only an outcome unacceptable to Obama would be acceptable to them, and threatened to refuse to raise the debt ceiling, with unknowable harm to the country, unless they got their way.  At the time, I labeled their actions as disloyal.  Forcing spending cuts when you have a clear mandate to do so is one thing, insisting that the outcome must be unacceptable to the other party and threatening harm to the country to get your way was going to far.

Well, since then, there has been another election.  The Republicans clearly ran on a platform of killing Obamacare and cutting taxes.  They less clearly  emphasized huge cuts to Medicaid and turning Medicare into a voucher system because they knew these things would be unpopular.  The Republicans lost the Presidency.  They retained their majority in the House, but lost seats in both houses.  The public appears to have rejected their program.  Their response has been to seek to force it over anyhow, by threats to shut down the government and/or refuse to raise the debt ceiling.  

The plan so far appears to be to attempt to defund Obamacare in the budgetary showdown and to force over other aspects of the Republican platform in the debt ceiling showdown.  The former is bad enough.  Norm Ornstein outlines the reasonable actions available to a loyal opposition when confronted with legislation it opposes.  It can seek to repeal it.  (Tried and failed, numerous times).  It can seek to amend it into a form it considers more acceptable.  They can push to minimize the perceived harm in implementation.  Or they can step aside and leave implementation entirely to the opposing party.  Or, although Ornstein does not mention it, they can challenge its constitutionality before the Supreme Court.  Congressional Republicans have attempted the first and last options, while rejecting any of the others.  But to threaten the shutdown of the federal government -- Social Security checks not delivered, Medicare and Medicaid reimbursements not made, air travel possibly disrupted, emergency personnel forced to work without pay -- to threaten such harm to their fellow citizens, all to ensure that millions of their fellow citizens do not get health insurance -- looks a whole lot like disloyalty to me.  

But let us extend the Republicans the benefit of the doubt there.  At least they can justifiably claim that Obamacare remains unpopular, that Obama's reelection does not reasonably look like a mandate for Obamacare, and that they sincerely believe it will be harmful.  That leaves the matter of the debt ceiling.

Apparently the Republicans have prepared a menu of options, with each concession buying a different extension of the debt ceiling.  An agreement to voucherize Medicare will win a debt ceiling extension to the end of 2016.  Cuts to Food Stamps will get a shorter extension, at the end of which, Republican will again refuse to raise the debt ceiling to compel the next portion of their agenda.  In short, they plan to force over their agenda by threats to refuse to raise the debt ceiling and thereby cause grave damage to the economy.  The only choice they offer is whether to do it all at once or by installments.  In 2012 Republicans ran (sort of) on a program to bloc grant Medicaid and voucherize Medicare.  The public rejected them.  There is nothing to stop them now, as a loyal opposition, from passing legislation to do just that in the House. Granted, it will fail in the Senate, and even if Republicans win the Senate in 2014, President Obama will veto such a proposal.  But so what?  If Republicans think voucherizing Medicare is a good idea, they are perfectly free to campaign on it in 2016 and let the public decide.  Of course, there is a reason Republican are not trying to pass their agenda by politics as usual.  They know it is highly unpopular and that if they campaigned on it, they would lose, just as they lost in 2012.**  Their response is to ignore the electoral outcome and attempt to force their rejected program over by threats to blow up the economy.  This does not go as far as shutting down the government to force an opposing President to resign, but ultimately I would still say it refuses to "accept[] of electoral outcomes in exchange for a chance to regularly compete for political office within formally defined timeframes."  As such, it is disloyal.

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 *Needless to say, this hypothetical assumes that the Speaker is not John Boehner, but a Tea Party Republican.

**So, Republicans would say, what about Obamacare?  Democrats passed it despite its unpopularity.  Why was that not disloyal to democracy?  But in the case of Obamacare, Democrats had campaigned on passing something like it and decisively won the Presidency, the House, and a filibuster-proof majority in the Senate.  Ultimately, whether Republicans like it or not, Obamacare was passed by the normal legislative process.  A closer analogy would be if there was a Republican President and a Republican majority Senate, but Democrats had the majority in the House and threatened to blow up the economy unless the President adopted universal healthcare.

Surveillance and the Rule of Law

In my last post, I sought to establish that it is not, after all, that much for our government to say that it has some sort of particularized suspicion before conducting surveillance.  I used 1984 to establish that, unless it wants to engage in random, mindless terror like Stalin, every government, no matter how totalitarian, will have to have some sort of particularized suspicion to conduct intensive surveillance simply because surveillance is so labor intensive, and the secret police are necessarily a limited resource.  I next turn to The Lives of Others to address why it matters (1) whether the surveillance is done under law and (2) whether the laws involved are just and respectful of liberty.  Specifically, I want to address why these are two separate issues, and why the rule of law is important, regardless of whether the laws in question are just.

But first for a brief glance at the need for particularized suspicion.  Even though East Germany has the largest secret police relative to population and the most intensive surveillance of its population of any country ever, it still required some sort of particularized suspicion to actually bug a target’s house and listen to all the conversations taking place.  Watching the movie makes clear why.  In this case, the target was Georg Dreyman, the country’s (fictional) most distinguished playwright.  His household consists of himself and his wife, Christa-Maria.  (Either they had no children, or their children had all grown up and moved out).   The Stasi agents sit in a quiet room, listening to what was happening and taking notes.  They are not required to transcribe the entire conversation, but do have to note the general gist of it.  They listen in shifts.  When the main character obtains permission to do all the listening by himself, he is making an extraordinary request.  And, in fact, it would never have been granted lest someone do exactly what he did – protect his targets by not giving an accurate report.  The watchers were watched at all times.   The ratio of secret police to population was 166 to one, the highest of any totalitarian country in modern times.  But even at such a ratio, manpower limitations would necessarily have limited how many people they could subject to such intense scrutiny.  No one agent could possibly have listened in on 166 people and transcribed all their conversations.  The real Stasi had full-time officers posted to every factory.  It had an agent in every apartment, noting every overnight guest.  Schools, universities, and hospitals were infiltrated from top to bottom.  It also tapped 100,000 telephone lines in West Germany and had 2,000 full-time agents listening in.*  They filmed hotel and apartment rooms with secret video cameras, through tiny holes in the walls.  Dissident Ursula Poppe learned to recognized the men who tracked her and saw the bug in her ceiling.  When she later saw her Stasi files, she learned that video cameras were installed in the apartment across the street, her friends' bedrooms were bugged, her mail was opened, and her classmates investigated.  But surveillance this intensive could only be conducted on a minority of the population due to manpower limitations, so some sort of particularized suspicion would be required.

As for the matter of law, East Germany, as portrayed in The Lives of Others is an odd sort of hybrid dictatorship.  It is not completely lawless, like the dictatorships of Stalin or Hitler, but neither could it be described as truly operating under the rule of law, however, unjust and oppressive.  Rather, it is somewhere in between – a regime that only acts lawlessly when it is not worried about getting caught.  Because surveillance is done in secret and not exposed to any sort of scrutiny, it is done lawlessly.  By contrast, arrests, trials and punishments are public events and must be done according to law.  The laws are unjust and oppressive, but even unjust and oppressive law provides some degree of protection.

The story begins with the Minister of Culture ordering Stasi to bug the house of East Germany’s greatest playwright.  He has always been a loyal Communist before, but he has a lot of dissident friends, so the Minister of Culture says he has his suspicions.  The agent in charge never questions the decision.  But it turns out that really the Minister is sleeping with the playwright’s wife (she had to go along or he could ruin her career as an actress) and looking for some dirt to ruin his rival so he could have her all his own.  When the agent in charge of the surveillance finds out, he begins for the first time to question what he is doing,  A critic complains:

In this way, the horror that was inscribed into the very structure of the East German system is relegated to a mere personal whim. What’s lost is that the system would be no less terrifying without the minister’s personal corruption, even if it were run by only dedicated and “honest” bureaucrats.

But to make such a complaint is to miss the whole point.  Any system in which the secret police (or anyone else) operates in the dark with no sort of accountability will necessarily be riddled with corruption.  It is the nature of unaccountable and lawless power to be abused.  And how difficult is it to imagine that some rigid, unthinking, bureaucratic functionary who never thought to question the system might nonetheless be appalled corrupt misuse of the system and gradually come to recognize that corruption is inherent in it.  Or suppose there had been a secret FISA-like court (or any sort of court) that had to approve requests to bug a house to ensure that the surveillance complied with the law.  The laws would be unjust and oppressive.  Merely being a critic of the regime would be grounds enough for such an order.  But “I’m sleeping with his wife and want information to destroy a romantic rival” would not cut it, and the mere thought of having to explain such a thing would have been sufficient to shame even the most shameless official.**

That being said, the law in question is an extremely unjust and oppressive.  When the playwright’s best friend commits suicide, the playwright and some surviving friends resolve to publish an article in West Germany about East Germany’s high suicide rate.  The government has been concealing the statistics lest they make it look bad.  To expose this information is a crime.  In order to keep anyone from publishing unapproved information, all typewriters are registered, so that any unauthorized publication can be traced to the typewriter it was written on.  To escape this restriction, the playwright and his friends obtain an illegal, unregistered typewriter, write the article, and smuggle it into West Germany.  The East Germans have an agent on the other end, who is not able to stop the publication, but does show them the typeface.  Obviously, a ban on exposing embarrassing but true information is a very unjust and oppressive law, here we see why even a very unjust and oppressive law is better than no law.  Yes, it is monstrous that exposing embarrassing facts is a crime.  But the officials don’t go seizing anyone at random who might be even remotely implicated; they have to trace the typewriter to the actual offender.  To  publicly and formally enter the playwrights house to look for the typewriter, they still have to get a warrant with probable cause and look for a specific thing.  Furthermore, the agent has hidden the typewriter, so when the police are unable to find it, they have to let the playwright go because they have no proof.  Under a truly lawless regime like Stalin's, he would not have been so lucky.***  

So what does this mean for us?  Well, for one thing, it means I am unwilling to give our government too much credit for only conducting in-depth surveillance if they had particular suspicion.  That is a constraint imposed by sheer manpower limitations that even the Stasi could not escape.  Second, having it take place within a framework of laws, even very bad laws,  and requiring a warrant, even from a rubber stamp court, is better than having the whole thing take place outside the law altogether.  (See COINTELPRO as an example of what can happen in our own country).  Bringing it within a system of laws ensures that, although the NSA’s surveillance is unjust and oppressive, at least it will not be applied corruptly.  But finally, the law is much too broad, and is being stretched even further.  Reforms are needed.

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*This is a ratio of one agent per 50 phone lines. Presumably it was doable because phone lines are only in use a minority of the time.

*Naturally, the Culture Minister did not reveal his true motivation to Stasi.  But how many Stasi personnel have arranged personal surveillance for equally corrupt and self-serving reasons?
***And quite possibly, if the suspect had not been a world-renowned playwright, things would have gone differently.  Nonetheless, even an unjust and oppressive law offered some degree of protection.

Surveillance: Why There is No Escape from Particularized Suspicion

From the very start, George Orwell's Thought Police seemed far-fetched to me.  The obvious question is, just how large is the organization?  How can there possibly be an organization large enough to monitor the entire population at all times, to detect what they are doing even when off-screen, and even to study them in detail, like a specimen under a microscope.  Such a level of scrutiny, to say nothing of apparent infallibility, is an extremely labor-intense undertaking.  Just how many people would it take?

Orwell starts off by limiting it somewhat. Such intensive surveillance is practiced on only Party members, making up about 15% of the population.  The common people (Proles) are much more loosely controlled. Informants circulate among them, rooting out obvious trouble makes, but otherwise they are allowed to live as they wish.  Even Party members can hope to escape the scrutiny of the Thought Police by wandering into Prole parts of town.  Still, just how many people would it take to semi-continuously monitor 15% of the population? Well, we can start with some basics.  Although Winston Smith, the protagonist, lives alone, most people live in families.  Let us assume your typical household have to have four members.  Assuming one agent monitoring each family (we will assume that each family either lives in a one-room apartment or that the agent is looking at all their telescreens at the same time), that would require one-fourth of 15% of the population to do the monitoring, or about 3.75% of the population, or about one person out of 27.  Since the parents are at work and the children in school much of the time (we will assume no stay-at-home housewives), we can assume only one shift is needed to monitor families at home.  On the other hand, someone will have to monitor people at work and school.  Granted, much of this will be time spent in common areas, where only one monitor may be needed for a large group of people.  Still, Winston seems to be alone in his cubicle much of his time at work.  Granted, one spy might watch more than one cubicle at a time.  One spy might even watch more than one apartment at a time.  But there will be a loss of efficiency.  And presumably there is a hierarchy in the Thought Police, with higher-ups deciding what to do with any bad reports coming in from the telescreens.  And presumably the grunts watching the screens are not the same as the agents who sneak into Winston's apartment when he is not there, read his diary, and put the speck back on his page so he will not be aware of it.

On the other hand, maybe the Thought Police don't watch everyone.  It is made clear that children are taught to inform against their parents.  Winston's ex-wife would not hesitate to inform against her husband.  So maybe they only monitor people if they do not have an informant in the household (or, of course, if the informant sees something suspicious).  Still, someone will have to process all the reports coming in from all those informants, and once the Thought Police see something suspicious, it will take a team of at least several members to monitor the suspected dissident in the sort of detail that Orwell describes.

But all of this simply goes to an important point.  Even in a society as totalitarian as 1984, there will have to be some level of particularized suspicion to trigger the level of surveillance Orwell describes.  This is simply inevitable given manpower limitations.  It is my calculation that in order to maintain the level of surveillance Orwell describes, it would be necessary to have at least one member of the Thought Police for ever 27 citizens.  This is a completely unrealistic ratio.  In the free and democratic U.S., cities over 250,000 population average 2.5 police per 1,000 population, or one for every 400 people.  Smaller communities typically have fewer. World ratios are here, ranging from Brunei, with 1,076 police per 100,000 people (or one per 92 people) to Mali with 48 police per 100,000 population, or less than one for every 2000 people.*  Secret police are normally an elite unit, smaller than the regular police.  Thus the KGB had one agent per 5,830 people and the Gestapo had one agent per 2,000 people.  The East German Stasi, the finest-toothed secret police of all, had one agent per 166 people.  In short, the police-population ratio needed to carry off Orwell's level of scrutiny simply is not achievable.

Three possible objections present themselves.  First, one might say, why does it have to be so labor intensive?  Why not have computers do the screening?  Certainly, I have little doubt that computers have now or will have soon, capacity to record every phone call, e-mail, and so forth.  Doubtless the time will soon come if it has not already when it will be technically possible to bug every person's home and record every conversation taking place.   But how does one process such an enormous mass of data?  The NSA has apparently looked for patterns in the meta-data or for suspicious words in international phone calls.  Maybe in 1984, computers could screen images for suspicious words or body language and alert human agents if they saw anything.  Indeed, maybe some day computers will get so good at such things that in-depth surveillance will no longer be labor intensive.  But we are nowhere near that point yet and neither (so far as we can tell) was 1984.  As of today, computers have proven very poor at detecting grounds for particularized suspicion and have produced mostly false alarms and subjected innocent people to senseless scrutiny.  Granted, in a totalitarian country this may be a feature not a bug.  Random harassment of the innocent based on groundless suspicion should, after all, be quite effective in quelling dissent.  But having a lot of investigations of false leads also wastes time and manpower, which are limited resources, and raises the risk of missing the real dissidents.

This, in turn, raises the second point.  Why bother with thorough surveillance and particularized suspicion at all?  Why not just seize anyone who seems even remotely suspicious and skip the time-consuming and labor-intensive process of investigating whether the suspicions had any sort of validity.  A sufficiently widespread random terror should be quite enough to frighten any potential dissenters into passivity.  This is essentially what Stalin did during the Great Purges.  Mere rumor or a tip for a personal rival were enough to have anyone carted off to Siberia and never seen again.  The answer, I suppose, is that the Stalins of the world are fortunately not very common.  Furthermore, the Great Purges proved to be unsustainable. The system was threatening to break down under the sheer scale of the arrests.  Even basically random arrests proved to be more labor intensive than the secret police had the resources for.  In short, episodes like the Great Purges are best seen as an aberration.  Most dictatorships ultimately want to get their real opponents and, although they may tolerate or even welcome a certain amount of collateral damage, but complete randomness is going too far.

Finally, the source of most arrests during the great purges -- a denunciation -- raises the final and most important objection.  What about the use of informants?  The statistics are fascinating.  Stasi had one agent per 166 citizens.  Including their regular informants, however, the ratio was closer to one out of 66 citizens.  And county occasional informants, the ratio was closer to one out of every six to seven citizens.  In other words, at any dinner party of 10 to 12 people, it was reasonable to assume that one or two might inform the police if anyone made a subversive remark.  One can well imagine the effect this would have in stifling free speech.  Yet going by informants, East Germany was not the finest-tuned surveillance system.  In Cuba under the Castros, fully 8.4 million people out of a population of 11.2 million are members of the Committees in Defense of the Revolution.  There is a committee on each block, which keeps files on each person on the block.  In other words, approximately 80% of the population are informants of some kind!  It should also be noted that the use of informants, besides being low-tech, is also very old, being mentioned even in ancient times.  It can be immensely intrusive.  In 17th Century Spain, the woman who cooked with olive oil might be denounced to the Inquisition as a possible secret Jew or Muslim for not using lard.

In short, there is no doubt that modern techniques make more intensive surveillance possible than ever before.  But intensive surveillance is so labor intensive that the number of people who can be subjected to it is necessarily limited.  The most effective form of extensive surveillance (i.e., surveillance on a large number of people) is the old-fashioned one, surveillance from the bottom up through the use of informants.

There is a fascinating contrast between Orwell's version of surveillance and Tolkien's.  Tolkien's account of surveillance is extremely vague as to Sauron's capacity for surveillance, much less  how it was done.  Orwell, by contrast, describes the Thought Police' techniques in detail.  On the other hand, Sauron's agents (the orcs) are well characterized and act like one might well imagine real secret police might act.  The Thought Police, on the other hand, never have any characterization at all.  They have no human weaknesses of fallibility.  They are simply assumed to be omniscient, and that is all.  I have long yearned to read a version of 1984 written from the perspective of the Thought Police letting us see now they maintain such levels of surveillance -- and how, as is inevitably the case -- they make mistakes.

In my next post, I will get to The Lives of Others and the rule of law.

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*The Vatican is an extreme outlier, with 15,000 police per 100,000 people, or one for every 6 2/3 person.  But the Vatican is not by any measure a normal country.

Surveillance from the Perspective of Fiction

This post makes the interesting comment that the real analogy to the present NSA surveillance is not .  1984, but Lord of the Rings.  Not Big Brother and the infallible Thought Police, but the immensely powerful but ultimately fallible Eye of Sauron.  Certainly Tolkein offers and important psychological insight in his novel -- Sauron, despite his immense knowledge and power, is not infallible. He makes mistakes, most notably, assuming that because he wants to use the Ring to take over the world, anyone else who gets the Ring will also want to take over the world.  That some people might see taking over the world as inherently illegitimate and seek the destroy the ring so that no one can use it never crosses his mind.  It is a powerful metaphor. But Sauron is useless in any more detailed analysis for one simple and obvious reason -- we have no idea what his surveillance capacities are.  We know he has a Seeing Stone that can be used to see for some distance, and to communicate with anyone else who has a Stone.  Indeed, we know that he used the Seeing Stone to capture Saruman and Denethor.  Other than that, we really don't know whether the Eye of Sauron is literal or metaphoric.  Does actually look around in all directions and physically see everything that transpires in Middle Earth, or is the Eye a metaphor for his general sources of information, most of which come from spies.  Either interpretation is plausible.

1984, by contrast, is very direct and literal in the surveillance capacity shown.  Everywhere, in every room and on the outside of every building is a two-way viewing screen, and even in the absence of such screens there may be microphones.  Children inform against their parents.  Secret agents of the Thought Police are everywhere, and no one knows until too late who they are.  No one ever knows when they are or are not being watched, which naturally inhibits any show of dissent.  Winston and Julia think they have rented a secret hideaway, only to find that the proprietor is an agent of the Thought Police.  But at the end, their powers are shown to be much greater and more fearsome that Winston ever suspected.  He has a small area of his room outside the view of the telescreen, where he hunches, writing his unorthodox thoughts in a diary.  He leaves a speck of dust on the page to see if it has been tampered with.  Later he learns that the thought police had been studying him all this time, like a specimen under a microscope, had known all the things he thought he was hiding, and had even carefully replaced the dust speck on the pages of his diary.  In short, they really do seem to be omniscient.

There is one other more realistic (though not wholly realistic)* work on the actual surveillance practices of what was probably the most thoroughgoing surveillance state ever to exist in the real world -- The Lives of Others, describing surveillance as practiced by the Stasi (secret police) in East Germany.  I want to use 1984 and (later) The Lives of Others to address three issues on surveillance -- the technical limits on it, the legal limits on it, and the appropriateness of such laws.  More to follow.

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*It is highly realistic in the extent of surveillance going on.  It is unrealistic in showing an agent responsible for sending reports secretly send false information and allow his target to engage in dissident activities in safety.  In fact, all the watchers were also being watched and would never be able to get away with such a thing.

Kevin Drum on NSA Surveillance

Kevin Drum of Mother Jones magazine has done an excellent job of covering the NSA surveillance story.  I have a collection of his posts here.  Omitted are any about Snowdon personally because I do not want to allow that to become a distraction from the real issue.

Kevin Drum series:

The story first breaks
What NSA may be doing w phone records (two useful links)
First report of internet surveillance
WSJ says NSA is also tracking credit cards
Silly aside on the graphics
Why the leak?
Internet program less direct access than a "lock box"
This is consistent with Obama's overall record
What about tracking mail?
Internet sureveillance less than originally reported
Scope of NSA surveillance worldwide
What is on the other slides?
Compared to Baltimore phone booths
Opinion poll
PRISM may be a routine piece of military software
There were 22 briefings. That tells us nothing
Another opinion poll
The usual line -- Obama hasn't abused but what abt his successor
Conflicting rumors from unreliable sources
Polls, by party
Evidence of limited scope
Is which calls to tap a matter of agent discretion?
WaPo history of NSA surveillance programs
Internet metadata
More claims surveillance was limited
Snowdon interview
Breaking the law vs. bad law
Texas and drones
NSA chief gives his side of story to Congress
Plot broken up in Germany, 2006
More opinion polls
Minimization procedures
All tech companies are basically spy companies
More on minimization
Britain does it too
NSA denies tracking movement of cell phone users
NSA claims it has stopped bulk domestic email collection
Evidence NSA is not revealing all
Gov't also tracking letter metadata  (Link.  Tracked mail of former spokesman of the Earth Liberation Front)
Two gigantic NSA revelations:  It may be tracking e-mails and log-ins in real time and recording all telephone conversations.  The link  New power point slides released Greenwald speech Earlier evidence gov't was recording phone calls
Hint about what is going on: NSA is allowed to collect data, but still need authorization to use it.  link  Also expresses concern about the secrecy of the rulings.
Drum suggests about what I suggest