{"id":43453,"date":"2014-06-02T12:00:05","date_gmt":"2014-06-02T11:00:05","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=43453"},"modified":"2015-05-05T21:33:48","modified_gmt":"2015-05-05T20:33:48","slug":"the-empire-strikes-back-how-brandeis-foreshadowed-snowden-and-greenwald","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2014\/06\/the-empire-strikes-back-how-brandeis-foreshadowed-snowden-and-greenwald\/","title":{"rendered":"The Empire Strikes Back: How Brandeis Foreshadowed Snowden and Greenwald"},"content":{"rendered":"

So-called liberals attack the whistle-blower duo — and a brilliant Supreme Court justice saw it all coming.<\/em><\/p>\n

\"Edward<\/a>

Edward Snowden, Louis D. Brandeis, Glenn Greenwald (Credit: AP\/Kin Cheung\/Salon)<\/p><\/div>\n

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<\/a> in the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack against Glenn Greenwald<\/a> and Edward Snowden,<\/a> including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.<\/p>\n

Brandeis\u2019 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\u2019ll 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 \u2013 for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years \u2013 you undermine the rule of law and the principles of democracy.<\/p>\n

\u201cOur Government is the potent, the omnipresent teacher,\u201d Brandeis concluded. \u201cFor 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 \u2014 to declare that the Government may commit crimes in order to secure the conviction of a private criminal \u2014 would bring terrible retribution.\u201d<\/p>\n

Kinsley\u2019s anti-Greenwald screed<\/a> in the New York Times Book Review, and Packer\u2019s longer and subtler essay <\/a>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\u2019s right and who\u2019s 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,<\/a> 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\u2019t super awesome \u2013 but you could<\/em> be living in Communist Russia!<\/p>\n

You know, I have some criticisms of Glenn Greenwald too, and I\u2019d 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\u2019s 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 \u201ca pervasive absence of intellectual integrity.\u201d For that I\u2019m afraid that Packer \u2013 still in ideological rehab, it seems, for his \u201cliberal interventionist\u201d support of the Iraq War and the neoconservative foreign-policy agenda \u2013 had better look in the mirror.<\/p>\n

When Greenwald derides mainstream journalists (in his response<\/a> to Kinsley) as \u201cjingoistic media courtiers\u201d tasked with attacking \u201canyone who voices any fundamental critiques of American political culture,\u201d 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\u2019s 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 \u201cpermanent government\u201d and their well-connected media allies.<\/p>\n

Any pretense of a critical relationship toward power \u2014 which was once supposed to be the journalist\u2019s role in a democratic society \u2014 has been abandoned altogether (in Kinsley\u2019s case) or eaten away to nothing by reasonable-sounding nuance and dispassionate analysis, as with Packer. Kinsley\u2019s review has already been subjected to widespread mockery, even by \u201cmainstream\u201d commentators like the Washington Post\u2019s Erik Wemple,<\/a> 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\u2019t already know the answers: Journalists have no special rights or privileges, David Gregory was being \u201cperfectly reasonable\u201d when he accused Greenwald on \u201cMeet the Press\u201d of being a criminal, and we simply can\u2019t allow \u201cnewspapers and reporters to chase down and publish any national security leaks they can find.\u201d Who gets to decide how, when and whether government secrets are released? Why, the government, of course! Isn\u2019t it obvious?<\/p>\n

Packer arrives at a similar destination via a much more circuitous route, and a cleverer one. At least he avoids Kinsley\u2019s tone of bemusement and exasperation at other people\u2019s childish insistence that any of this is worth getting excited about (a key feature of his Beltway appeal for decades, to be fair). Toward the end of Packer\u2019s 5,000-word takedown, he raises some legitimate and interesting questions about the nature of privacy and freedom in the Internet age, along with the suggestion that Edward Snowden had placed his faith in a naive techno-utopian ideal: \u201cThe Internet will always be a space controlled by corporations and governments, and the freedom it provides is of a limited, even stunting kind. No one lives outside the fact of coercion \u2013 there is always a state to protect or pursue you, whether it\u2019s Obama\u2019s America or Putin\u2019s Russia.\u201d That\u2019s a reasonable philosophical position, but Packer abruptly bails out and concludes his essay with a clang, as if realizing that all that hemming and hawing has left him no place to stand. Greenwald\u2019s choice between obedience to authority and radical dissent excludes \u201cfair-minded public opinion,\u201d whatever that may be, and the distant possibility of democratic reform, which Packer admits the Obama administration has resisted. The end.<\/p>\n

We don\u2019t have to wonder what Brandeis would make of all this, or contact him through a medium \u2013 it\u2019s all there in the Olmstead dissent. In that case, the court found by a 5-4 vote that federal agents could record private telephone conversations without a warrant, and that the defendant\u2019s constitutional rights had not been violated. (Roy Olmstead was a guy in Washington state who had been convicted of transporting and selling liquor in defiance of Prohibition laws \u2013 so this was a story of stupid and misguided federal overreach on several levels.) Brandeis did not agree, and his words of warning from 86 years ago sound like powerful prophecy today.<\/p>\n

While the court\u2019s majority took the Scalia-type position that the Fourth and Fifth Amendments covered only physical actions like torture or breaking and entering, Brandeis urged a broader view. \u201cSubtler and more far-reaching means of invading privacy have become available to the Government,\u201d he wrote. \u201cDiscovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.\u201d You can say that again. In fact, the more you read of Brandeis\u2019 opinion, the more he seems like a time traveler from the future, shipped backward from the secret X-Men lair of Greenwald and Laura Poitras in a failed effort to divert us from disaster.<\/p>\n

If Brandeis does not literally predict the invention of the Internet and widespread electronic surveillance, he comes pretty close. \u201cThe progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping,\u201d he went on. \u201cWays may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.\u201d Then he goes on to speculate that psychiatrists of the future may be able to read people\u2019s \u201cunexpressed beliefs, thoughts and emotions\u201d and use those<\/em> as evidence, and as far as I know we haven\u2019t reached that dystopian nightmare yet. (But if that\u2019s the big final revelation from the Snowden-Greenwald trove of purloined NSA secrets, you read it here first.)<\/p>\n

But let\u2019s go back to the first two sentences of Brandeis\u2019 conclusion, the part about government as society\u2019s potent and omnipresent teacher, teaching the whole people by its example. I encountered that passage again, quite recently, in a startling context. While writing about Gore Vidal<\/a> earlier this week, I went back and reread Vidal\u2019s extraordinary essay \u201cThe Meaning of Timothy McVeigh,\u201d<\/a> which was published in September 2001 in Vanity Fair (now the publication that employs Michael Kinsley, as it happens). We all had other things to think about in that particular month, so Vidal\u2019s essay was rapidly forgotten, not least because it challenged the official narrative about McVeigh and the Oklahoma City bombing of 1995, not to mention the turn-of-the-century bubble of American confidence and complacency that was about to be popped.<\/p>\n

By the time McVeigh was convicted of the bombing, Vidal writes, the mainstream media and the public had gotten bored with him and moved along. He was depicted as a man of \u201cincredible innate evil,\u201d with \u201cno coherent motive for what he had done other than a Shakespearean motiveless malignity.\u201d As Vidal himself would later notice, virtually the same formula would be applied to 9\/11 mastermind Osama bin Laden, and for the same reason. Depicting McVeigh as a lone psychopath, or claiming that bin Laden \u201chates us for our freedom,\u201d removes them from history and evades the question of why they committed seemingly inexplicable acts, a question, Vidal quips, that \u201cthe Media are trained to shy away from. Too dangerous. One might actually learn why something had happened and become thoughtful.\u201d<\/p>\n

McVeigh remained stony silent during his trial, as befitted the embodiment of evil, and then, before the death sentence was read out, he stood to address the court: \u201cI wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me,\u201d he said, and continued with the quotation I have mentioned. Those present at the sentencing were \u201cdeeply confused\u201d by this, Vidal wrote at the time, and no wonder. To consider that the guy who blew up 168 men, women and children in the Murrah Federal Building was not some subliterate far-right moron, but a person capable of understanding and applying the words of a legendary liberal jurist to terrifying effect \u2013 the government was my teacher, and this was the lesson I learned \u2013 simply did not compute.<\/p>\n

One can certainly argue that McVeigh\u2019s use of the Brandeis quotation to justify mass murder was perverted and barbaric. Vidal would respond that the same can be said of the government crimes that had angered him, which mainstream journalists had largely ignored or excused. Vidal reads McVeigh as a coldblooded avenger who suffered \u201cfrom an exaggerated sense of justice\u201d and who saw his horrific deed as commensurate with the government\u2019s murders at Waco and Ruby Ridge, and with the bombing of Baghdad hospitals during the 1991 Gulf War. He believed he was at war with the government, either all by himself or with unknown comrades and co-conspirators, and that collateral damage (including his own execution) was to be expected. Throughout his legal proceedings, McVeigh insisted that he had not known there was a day-care center in the Murrah Building. But when asked why he had not apologized for the murder of innocents, he noted that Harry Truman never apologized for killing Japanese civilians by the hundreds of thousands with the A-bomb.<\/p>\n

As Vidal and Brandeis and Greenwald would all agree, none of that can be accommodated with the official narrative of American power. That narrative holds that whatever the government does, from the \u201cCollateral Murder\u201d<\/a> killings in Baghdad to drone attacks in Somalia or Yemen to the indiscriminate collection of Internet and cellphone data, stems by definition from the legitimate exercise of democratic authority. Even when such things go badly wrong, they are the work of statecraft, which stands above the law and the judgment of ordinary mortals. This is precisely the situation of government hypocrisy and criminality that Brandeis warned could lead to anarchy, in the sense of a widespread refusal to recognize the legitimacy of the state. Creeping anarchy is everywhere these days, and not just among the Cliven Bundys or Edward Snowdens of the world. They are leading indicators of a widespread trend; trust of the United States government has been trending downward since the mid-\u201960s, and continues to reach new lows with every new poll. Kinsley and Packer have given themselves the Sisyphean tasks of quelling anarchy and propping up the state.<\/p>\n

Any systematic opposition to the deeds of the state, and any attempt to interrogate its mysteries beyond the boundaries of the official narrative, is likely to be depicted as treasonous, as tinfoil-hat material or even as terrorism. Doing a series of network news interviews after McVeigh\u2019s execution, Vidal describes how \u201cthe interchangeable TV hosts handle anyone who tries to explain why something happened.\u201d First, he is asked whether he is claiming there was a conspiracy. \u201cA twinkle starts in a pair of bright contact lenses \u2026 there is a wriggling of the body, followed by a tiny snort and a significant glance into the camera to show that the guest has just been delivered to the studio by flying saucer.\u201d<\/p>\n

It would be obscene to suggest any parallel between Timothy McVeigh and Edward Snowden, but I don\u2019t have to. Defenders of the official narrative have already drawn the comparison, explicitly or otherwise. Both are loners with no history, manifestations of a libertarian loony-tunes personality disorder that of course cannot be explained and has no roots in anything the United States government ever did. (Packer devotes a lot of virtual ink to convincing his presumed liberal readership that Snowden is a fringe right-winger.) No doubt McVeigh is understood as more extreme, but he is also less dangerous because he is more easily dismissed as a child-killing lunatic, and in any case is not available for interviews with Brian Williams.<\/p>\n

Over the past year or so we\u2019ve heard plenty of hysterical Fox News patriots claiming that Snowden, and perhaps Greenwald too, were essentially terrorists who were likely or certain to cause the deaths of Americans (somehow), and who should be subjected to CIA kidnapping or summary drone execution. Those options were probably never on the table for a pair of white men born in the United States, but we\u2019ll never know for sure. Michael Kinsley insists that we still live in a democracy, no matter how poorly it functions,<\/a> and for the moment let\u2019s give him the benefit of the doubt. So the rebels and renegades are under attack not from drones, spooks and imperial stormtroopers, but from so-called liberals who have forgotten the lessons of Justice Brandeis.<\/p>\n

____________________________<\/p>\n

Andrew O\u2019Hehir: I’ve written about movies, books, media and politics for more than 20 years on both coasts. Formerly the editor in chief of <\/em>SF Weekly in San Francisco, I’ve been in New York since 1995, most of that time as an editor and writer at <\/em>Salon with editorial stops along the way at <\/em>Art & Antiques, Spin and <\/em>Swing magazines. My freelance career includes the <\/em>New York Times, the <\/em>Washington Post, the <\/em>Hollywood Reporter, Sight and Sound, and various other publications. I’ve also got a novel and a nonfiction book in the works. Specialties: Independent & foreign film (both as an art and a business); literary fiction & nonfiction; American politics & history; Irish politics & history.<\/em><\/p>\n

Go to Original \u2013 salon.com<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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.<\/p>\n","protected":false},"author":4,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[60],"tags":[],"class_list":["post-43453","post","type-post","status-publish","format-standard","hentry","category-whistleblowing-surveillance"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/43453","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=43453"}],"version-history":[{"count":0,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/43453\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=43453"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=43453"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=43453"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}