The Kenyan government has launched what amounts to a brazen assault on press freedom, sending hooded police into the offices of a major newspaper and burning an entire print run. The minister of Internal Security was ready with a depressingly typical bit of postcolonial African repressive threat-in-plain-sight bravado: “If you rattle a snake, you must be prepared to be bitten by it.” Translation: stop covering corruption in the government, or else.
For all you can’t-happen-here types, you might want to listen carefully to the way that the Kenyan government has justified its actions. First, in the name of national security, claiming that the paper was plotting to stir up ethnic unrest in its coverage of government corruption. Guess what? They can’t say more because to go into the details would compromise their ability to gather information. That sounds familiar. No oversight, no transparency, no accountability, and a pervasive logic of “national security” are structurally bad things: you can’t shake your finger scoldingly at African governments but nod approvingly at the same sort of policy and rhetoric cocktail when it’s “good guys”.
Second, there’s a clear reference to the now-orthodox historical narrative about genocide in Rwanda that names radio broadcasts as an important cause of the killings. This is a good example of why details and principles need to work together. It’s important to maintain the principle that even dangerous speech (whether it’s ethnic mobilization in postcolonial Africa or David Irving denying the Holocaust) has to be protected–but also to hold people who want to argue otherwise responsible to the details. The radio broadcasts in Rwanda came directly and demonstrably from a cabal of actors within pre-genocide government, and were highly coordinated. The Kenyan government is going after speech in civil society and charging in the vaguest possible terms that this speech has malicious intent. Even if you think speech in some contexts ought to be restricted (and I don’t), the standard of proof has to be extraordinarily high. If you’re going to talk about radio in Rwanda, and suggest that perhaps that shows that in some circumstances, speech is too dangerous to be permitted (and yes, quite a few academics and policy experts have done just that) you ought to know you’re offering a loaded rhetorical weapon to a broad range of scoundrels.
Any argument can be used by scoundrels–not least freedom of the press and freedom of the speech. It doesn’t change the fact that, yes, in some cases freedom of speech is too dangerous to be permitted. (“This is the BBC–now, General Eisenhower, is it true you’re planning to invade Normandy on June 6?”) Now, last I heard, the FBI didn’t go storming into the New York Times headquarters to prevent them from publishing, well, anything, so I don’t quite see that your parallel is particularly apt. Furthermore, you call the pervasive logic of national security structurally bad; it seems to me structurally necessary. I’m willing to listen to arguments for how it can be modified to maximize transparency, oversight, accountability, etc.–though it seems to me that (among other things) we do have elections for president and congress, and these provide a certain amount of accountability, and that congress does indeed have considerable oversight powers–but I’m afraid I’m not going to take you very seriously if you don’t concede that national security is, in principle, a valid argument with legitimate claims. And if you do cede that point, then I think your rhetoric here is woefully wild and loose.
National security IS a valid argument for keeping some kinds of secrets, if not for prior restraint of speech. But precisely because it is one of the few valid arguments for doing so, it’s the most important such argument to circumscribe very carefully. When it is illegal to even say that one has had to provide information to law enforcement; when law enforcement and intelligence has demonstrably made serious errors of judgement in the past and present about “targets of legitimate interest”; when there is no right of appeal when your name is put on a list of “dangerous travellers”, and so on, the genie is very much poised to get out of the bottle.
This is not your garden-variety “argument which can be misused by scoundrels”. National security is a structured, formal logic of governmental action–precisely the kind that constitutional protections are meant to delineate and constrain. When a state begins to argue that there IS no restraint on its capacity to act in the name of national security save its own judiciousness or trustworthiness, or that an emergency justifies any action or forgives any trespass, then that state is heading into the same structural waters that the Kenyan government is presently swimming in.
1) So far as I know, the American government has not called on prior restraint of speech, or justified it on the grounds of national security. If the Kenyan government has, that is grounds for criticizing the Kenyan government, full stop.
2) All government makes errors in judgment; rarely is it not serious from time to time. That is grounds for a certain skepticism about government, and, indeed, a wish to limit and oversee its abilities. But governmental action is and will remain necessary, not least to fight our enemies abroad and at home. Skepticism cannot lead to a strangulation of governmental ability to take action in our defense.
3) The logic behind being forbidden to mention that you have had to provide information to law enforcement is clear: so as not to give warning to our enemies. If you want to prevent this practice, you must acknowledge the possible costs.
4) I suppose I do think citizens ought to be able to appeal being placed on a list of “dangerous travellers.” Again, though, a simple legal appeal to produce the reasons why does indeed raise the possibility of revealing intelligence means that ought to be secret. I do find it a little troubling–I would like some procedure set up that balances the demands of security and civic rights–but I would be more troubled by a procedure that gives no weight to national security at all.
5) The American government has never argued that it has no restraints on its actions (or, I would submit, acted in that fashion), and that only its character (granted, a rather strong argument) justifies its actions. This argument is imputed to it by its critics–but its own rhetoric has always been careful to praise civil liberties, the rule of law, and limited government. So your argument, I think, is with action, not with rhetoric.
6) Constitutional law governs the interactions of citizens and the government in a state of peace. National security governs our actions in a state of war. There is always a certain amount of tension between the two, since even at war, much of our everyday life is conducted along peace-time norms, and even in peace, we are often a little bit at war with various of our enemies. The two logics, if you will, always co-exist, tensely. We have not become Stalinist Russia since 2001, or even remotely near Kenya. The national security logic, by law and by executive action, sanctioned or checked by the courts, has gained some more power, since we are rather clearly more at war than we used to be. Now, it is always productive for the citizenry to be suspicious, even paranoid, about infringements of liberty, and to yelp early and often–but even granting that, one can still legitimately doubt that there is in point of fact now a new and over-arching national security logic, that we have changed in any essential from our liberal and democratic norms, or that we are remotely like Kenya.
7) But this does ultimately come back to what I take to be your public-sphere roots. Freedom of information, rather than freedom of speech, seems to be more your sine qua non of liberty; and I take this to be Habermasianism in you. (With Habermas, I have some difficulties; but that’s perhaps another discussion.) I note, for example, that you frame your Kenyan case as freedom of speech, freedom of press, freedom of information; but surely it matters at least as much, if not more, that there was entering of property (without a warrant?), destruction of property without compensation, the arbitrary use of force. These can be opposed without any reference whatsoever to freedom of information.
A few problems there:
1) The Patriot Act did do this, in the case of certain information requests.
2) Poor logic; governments which make errors can be extremely dangerous (see: Earth, 20th century).
3) Which causes the public to be unable to evaluate the competancy and attitudes of the government officials. Not to mention that you’ve contradicted yourself in (1), above.
4) The fact that the government has place unconstitutional[1] restrictions on the use of travel by citizens, with no right of appeal, and then refused to alter this system, is a bad
5) Flat-out wrong – see signing statements, see ‘unitary executive’, see the government’s arguments about the ‘right’ to detain people indefinitely, without charges.
At this point I really have to ask you to read up on the last few years.
6) What state of war? If we are in a state of war against ‘terror’, then we’re in a permanent state of war. Just like a state of emergency. This is a standard technique of totalitarian/authoritarian governments, to have some justification of their powers.
7) Teresa Nielsen Hayden (in her blog, Making Light) put it that there are ‘foundation rights’, the abridgement of which puts stated rights at peril. For example, to the extent that an administration can control information, it can delude the voters. It’s clear by now that, if what’s come out since the election in 2004 had come out before the election, the right-wing in this country would be unified in their denunciations of excessive power in the hands of the Kerry administration.
1 & 3) You are conflating freedom to express an opinion or freedom to criticize the government with freedom to leak the details of an ongoing criminal (or in this case national security) investigation. If the NYT were to publish details of which Mafia hideouts were currently bugged, I fancy some sort of criminal proceeding might be in order. You are correct that the public cannot fully evaluate the competence of its government officials. In World War II, it could not tell whether Roosevelt was handling the Manhattan Project properly. In 1959, it could not evaluate the U-2 overflight program with complete knowledge. That oversight knowledge, inescapably, has been and must be delegated to a variety of government officials, in the various branches of government. One can argue the bounds of secrecy, but the government, and the nation, could not survive without some modicum of secrecy which must inescapably affect the citizenry.
2) There is no contradiction between your point and mine.
4) The system could be modified.
5) The administration has combined the rhetoric I have cited with the actions and arguments you have stated, and believes them reconcilable. So do I. Again, there is a distinction between rhetoric imputed to the government, and rhetoric used; since Prof. Burke’s argument rested in part on rhetoric, I am proposing that to the extent his argument rests on the imputed rhetoric rather than the actual rhetoric (which I believe is substantially), it is baseless.
And of course I have been doing my best as an active citizen to be an active reader these last few years.
6) We are, of course, in a permanent state of war. We are also in a permanent state of peace. Frankly, if not for the former, there would be little justification for any governmental powers in the first place. But I do hope we can beat back this wave of Islamist terror in the forseeable future, and with safety re-constrain the war-powers of government to their Sept. 10 condition. I have every confidence that we can do so; the democratic powers imposed far greater restrictions on liberty during both World Wars, and returned to peace-time normality without a glitch; the far lesser changes of the present should be even more easily reversed.
7) You and Hayden are also Habermasians, then. Again, you make an idol of information, an idol of reason, and assume that economies of truth are somehow illegitimate, when they are in point of fact an essential tool of rhetoric, the true basis of a free society. One consequence is your use of the concept “deluded voter,” when the phrase is more accurately “persuaded voter.”
Your hypotheticals are less obvious to me.
Something to add. I think the discussion to date has been a little imprecise. One issue is government secrecy vis-a-vis the citizenry, and the ability of citizens to exercise oversight on the government. Another is the issue of executive secrecy vis-a-vis the legislative and the judicial branches, and their ability to exercise oversight on the executive. The former I take to be less problematic, as a secondary function of the entire theory of representative government. The latter does indeed need to be looked at carefully. While divided government does allow for the separate branches to have unlimited competences in specific areas, there is a case to be made that many specific actions of the executive, even in areas of its war-making and foreign-policy competence, should have some such oversight. So, for example, I take this FISA critique as seriously as any; not because the government was hiding information from the people, but because the executive was acting without judicial or legislative oversight and review, in a circumstance where it arguably should have been. But I do believe it matters that this is not a question of governmental secrecy as such, but of possible executive overreaching within the governmental branches.
“1 & 3) You are conflating freedom to express an opinion or freedom to criticize the government with freedom to leak the details of an ongoing criminal (or in this case national security) investigation. ”
A freedom which the administration has retained (see Plame, Valerie).
“2) There is no contradiction between your point and mine.”
Aboslutely incorrect – you’re brushing off the odd errors; I’m pointing out that those ‘errors’ can be very dangerous. I’d add that those ‘errors’ are frequently not errors, they are deliberate acts.
“4) The system could be modified.”
Only if people are aware of the abuses, and of the fact that they are deliberate abuses (the Greens aren’t a terrorist threat).
“5) The administration has combined the rhetoric I have cited with the actions and arguments you have stated, and believes them reconcilable. So do I. ”
That’s because there’s a massive disconnect between the administration’s words and actions. Con men have no problem with the reconcilation of words and deeds.
“6) We are, of course, in a permanent state of war. We are also in a permanent state of peace. Frankly, if not for the former, there would be little justification for any governmental powers in the first place. But I do hope we can beat back this wave of Islamist terror in the forseeable future, and with safety re-constrain the war-powers of government to their Sept. 10 condition. I have every confidence that we can do so; the democratic powers imposed far greater restrictions on liberty during both World Wars, and returned to peace-time normality without a glitch; the far lesser changes of the present should be even more easily reversed.”
‘Permanent state of war’ pretty much concedes freedoms.
As to WWI and II, please note that they had actual expiration dates, and were conducted under conditions where it would have been clear if the administration had tried to make a permanent war state.