[This is Fred. G is still off, but will be back sometime this month. In the meantime, Phil called to talk about the Snowden affair. As you know, Snowden hit the media about six weeks ago with allegations that the Government, via the NSA, is developing a massive data base about the comings and goings, the thoughts and words, and the friendships of a good slice of the world’s population. To prove his case, Snowden has been releasing documents in increments through the media, together with an analysis. So far a lot of his information appears to be correct; at least NSA isn’t denying it. And the rhetorical pot is boiling.

The three main political defenses I hear are (i) if you’re not doing anything wrong, you shouldn’t be worried about being examined; (ii) this stuff isn’t supposed to be out, it’s secret and more; and (iii) there’s a court that oversees the whole thing, so why worry?

I’m sorry, I’m not persuaded.

  • Do we really want the Government everywhere with us? In the bathroom? In our beds? Most likely you’re not breaking a law in either place, so why is the Government involved?
  • So what if the data was classified? It’s out to the world now. Are you saying that I shouldn’t read it?
  • Yes there is a court, but its proceedings, decisions and opinions are secret. So how do I know what’s going on, what’s happening to my rights under our Constitution?

Yesterday more violations of the law popped up.[1] They’re all classified, of course, but leaked. So why did this conduct get by judicial scrutiny? Well, the Chief Judge of the secret court says his operation is not equipped to police the NSA. For the most part his judges simply accept the representations made by NSA about what it’s doing.[2]

Phil says that Jeremy Bentham[3], the 17th – 18th Century philosopher, would totally understand today’s political news. Phil’s our resident expert on Bentham, and I’m speechless from the latest disclosures, so I asked him to gin up something for this week’s blog.]

Yes you did, and thank you very much. Regular readers of this blog no doubt are familiar with Bentham; we’ve discussed him many times, on this venue and on the old one as well. He was a well-known philosopher in his day, and wrote a lot about political rhetoric. Those papers were collected after he died and published as The Book of Fallacies.[4] You might say that, even today and for all its faults, that book is pretty good index to the ways politicians try to fool the public.

The original isn’t easy to read, but once you settle into it, you’ll see what I mean. Bentham originated, or at least popularized the notion of a political fallacy. Basically political fallacies are the rhetorical tricks and dodges politicians use to divert us from the merits of a dispute, and refocus our attention on irrelevancies and, most likely, on emotion. Generally the politicians who do this are either not very smart, or think their audience is stupid, or both.[5]

If Bentham were alive today, I’m sure he’d tell us to watch out for politicians hiding behind the Official Malefactor’s Screen.[6] The screen argument is this: If you’re a bureaucrat, or a Congressperson, or whatever, and you’re caught doing something you know the voters wouldn’t like, just tell the public that they can’t object. If they do, they’re opposing and undermining the Government, and they certainly don’t want to do that.[7] This is a dangerous argument because, once the public accepts it, they’re tacitly accepting the notion that no corruption, mistakes, etc. by highly placed officials should be corrected.[8]

Bentham thought that would be a bad thing. Opposing misrule in Government is not the same as opposing Government as an enterprise. You don’t eliminate Government to eliminate its abuse; instead you better regulate it.[9] The same is true in the private economy. If someone is a guardian of another, and is acting badly, you can sue to have the guardian replaced; you don’t need to attack guardianship as an institution. Similarly, if someone breaches a contract with you, you sue to enforce your rights, not to eliminate all contracts[10].

There are people who think we would be better off with no government at all. They used to be called anarchists; today I think some of them are media conservatives. But whatever you call them, their argument was very familiar to Jeremy Bentham. He said that only a man with powerful desires, a strong back and a weak mind, might take that view. The rest of us, including the “most indigent and … ignorant” know that only a government makes civilized life possible. [11] We need government to protect us from foreign adversaries and from our fellow citizens as well.[12]

So given that government is necessary, how do we – the public – control it? In Bentham’s time the British Government was a combination of a Parliament and a monarchy, and the monarch had considerable powers. Nevertheless, Bentham thought public opinion could force changes in policy, personnel, etc. in important cases. And, it was much better to change things that way, he said, rather than by “open and lawless violence.”[13] Today our choices in the U.S. are much more direct; we get to vote for the scoundrels in Government (or most of them) and turn them out of office when they offend us.

Of course, that only works if we know what’s going on, and this is where Edward Snowden comes in. Currently he’s telling us lots things we didn’t know. The stuff he’s releasing is classified[14], and strictly speaking he doesn’t have the authority to let it out. On the other hand, material isn’t supposed to be classified to conceal “violations of law, inefficiency, or administrative error,” or to prevent embarrassment to important people or institutions.[15]

So there you go. Is Edward Snowden releasing data that shows violations of law, including our Constitution? After all, one of the great undecided questions is whether NSA has been conducting unreasonable searches and seizures on American citizens. Or is he disclosing stuff that might affect national security?[16] Or is he doing both?

Luckily you and I don’t have to decide that. Our job is to decide what’s to be done with the Government. Even if the NSA’s conduct is legal, which I doubt, it’s still offensive. We can’t turn a blind eye to the facts, simply because the Government is involved. We have to decide how to repair the structure, not to destroy it, so that we, and perhaps people in the rest of the world, are less afraid of our Government. And if in the process we eliminate some of the Lords of Misrule who created this mess, so much the better. That’s the Bentham way.

[1] See, e.g., The Washington Post, National Security, Gellman, NSA broke privacy rules thousands of times per year, audit finds (August 15, 2013) available at http://www.washingtonpost.com/world/national-security/nsa-broke-privacy-rules-thousands-of-times-per-year-audit-finds/2013/08/15/3310e554-05ca-11e3-a07f-49ddc7417125_story.html?wpisrc=al_comboPN_p

[2] See, e.g., The Washington Post, National Security, Leonnig, Court: Ability to police U.S. spying program limited (August 15, 2013): “The leader of the secret court that is supposed to provide critical oversight of the government’s vast spying programs said that its ability to do so is limited and that it must trust the government to report when it improperly spies on Americans.” The article is available at http://www.washingtonpost.com/politics/court-ability-to-police-us-spying-program-limited/2013/08/15/4a8c8c44-05cd-11e3-a07f-49ddc7417125_story.html

[3] He was quite famous in has day. Take a look at his biography in Wikipedia; just go to the Wikipedia website and search “Jeremy Bentham,” or simply click here: http://en.wikipedia.org/wiki/Jeremy_Bentham

[4] See Bentham& Bingham, The Book of Fallacies: From Unfinished Papers of Jeremy Bentham (London, 1824) (Nabu Reprint) at p. 339, 340. (Hereafter, “Bentham’s Fallacies at p. __”)

[5] I’m paraphrasing myself here, from the April blog. Why reinvent something that already works? For the source material for my conclusion, see Bentham’s Fallacies at p. 359, 360: “Upon the whole, the following are … in common to all the several arguments here distinguished by the name of fallacies: (1) Whatsoever be the measure at hand, they are, with relation to it, irrelevant … (7) on the part of those who … give utterance to them, they are indicative either of improbity or intellectual weakness, or of a contempt for the understanding of those on whose minds they are destined to operate.”

[6] See Bentham’s Fallacies at Chapter IV, p. 158-183.

[7] See Bentham’s Fallacies at p. 158. (“Oppose us, you oppose Government; Disgrace us, you disgrace Government; Bring us into contempt, you bring Government into contempt; and anarchy and civil war are the immediate consequences.”

[8] See Bentham’s Fallacies at p. 158-159: “Let but this notion be acceded to, all persons now partaking, or who may at any time be likely to partake, in the business and profit of misrule, must, in every one of its shapes, be allowed to continue to do so without disturbance; all abuses, as well future as present, must continue without remedy.”

[9] See Bentham’s Fallacies at p. 163: “What in consequence of such contempt or aversion he wishes for, is, not that there be no hands at all to exercise these powers, but that the hands may be better regulated…”

[10] The first example comes from Bentham. See Bentham’s Fallacies at p. 163. The second is my own. And by the way, Bentham was one of those who thought that Government was useful because it protected people from one another. See Bentham’s Fallacies at p. 165: “Were the business of Government carried on ever so much worse than it is, still it is from the power of Government in its several branches that each man receives whatever protection he enjoys, either against foreign or domestic adversaries.”

[11] See Bentham’s Fallacies at p. 165-166: “Here and there a man of strong appetites, weak understanding, and stout heart excepted, it might be affirmed with confidence that the most indigent and the most ignorant would not be foolish enough to wish to see a complete dissolution of the bonds of government. In such a state of things, whatsoever he might expect to grasp for the moment, he would have no assured hope of keeping. Were he ever so strong, his strength, he could not but see, would avail him nothing against a momentarily confederated multitude; nor in one part of his field against a swifter individual ravaging the opposite part, nor during sleep against the weakest and most sluggish…

[12] See text at n. 9.

[13] See Bentham’s Fallacies at p. 166 – 167: “Unless by open and lawless violence, by no other means than lowering in the estimation of the people the hands by which the powers of Government are exercised, if the cause of the mischief consist in the unfitness of the hands; or the system of management under which they act … can there be any hope or chance of beneficial change.”

[14] See Executive Order 13526, Classified National Security Information, 75 Fed Reg. 707 et seq. (January 5, 2010) is the parent directive that establishes the current classification system. Henceforth, we’ll cite it as Executive Order 13526 at __. You can get it from the National Archives. Just go to http://www.archives.gov/federal-register/executive-orders/2009-obama.html

[15] See Executive Order 13526 at § 1.7, Classification Prohibitions and Limitations, par. (a): “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency…” There are two other restrictions as well.

[16] See Executive Order 13526 at § 1.4, Classification Categories, at par. (c).