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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Monday, February 05, 2007

How the super-smart, insider experts opine

(updated below)

The New Republic
has published an article by Benjamin Wittes, a "Guest Scholar" at the Brookings Institution, which argues that the issues surrounding the Bush administration's warrantless eavesdropping activities are so complex and sophisticated, and raise such grave matters of national security, that not even the most brilliant and well-informed insider-experts -- such as Wittes -- could possibly form an opinion about whether the Bush administration did anything wrong. Only blind, ignorant partisans would claim that President Bush acted wrongfully or illegally here.

Wittes' article is the perfect textbook illustration of how the above-it-all, very-serious, super-smart, self-anointed pundit-experts churn out empty, cliched decrees -- which, though totally devoid of substance, nonetheless enable the Bush movement's worst excesses. Wittes executes this formula perfectly. First comes the Broder-ish tactic of equating and then dismissing both "extremes" in the debate in order to establish one's nonpartisan, elevated, detached objectivity:

Many liberals are convinced that the program represented a deep affront to the rule of law, though they don't know quite what the program was. Many conservatives are no less certain of the program's absolute necessity. And, though they don't know quite what it was either, they are sure as well that President Bush had the authority to implement it--whatever federal law on the subject may happen to say.

Right at the start we learn how very clever and objective Wittes is: both "liberals" and "conservatives" have formed strong opinions about the NSA scandal despite knowing nothing. Thus, those who object to the President's law-breaking are exactly the same as those who defend it: merely loud-mouth partisan extremists -- opposite sides of the same shrill, lowly coin -- who can be scornfully dismissed away as know-nothing hysterics. Such blind ignorance, of course, stands in stark contrast to the very high-minded and insider expertise of Wittes:

Unlike many of these oh-so-confident commentators, I actually know something about the Foreign Intelligence Surveillance Act. I am one of the very few journalists--to my knowledge, in fact, the only one--who ever physically set foot inside the super-secret Foreign Intelligence Surveillance Act (FISA) Court. FISA has been a particular interest of mine since the mid-'90s, when I was a young reporter at a legal trade paper and the court it created was the most obscure corner of the federal judiciary. Precisely because nobody knew anything about it, I studied it obsessively. I talked to the judges who heard the government's surveillance requests and to the Justice Department lawyers who advanced these applications. I learned, in some detail, the contours, value, and the limitations of FISA at a time when very few people cared about it.

So what is my assessment of the Terrorist Surveillance Program, informed by my decade of watching the court and the law that underlies it?

I don't know.

Just preliminarily, do The New Republic editors really not realize how adolescent this all sounds? "I actually know something about the Foreign Intelligence Surveillance Act." "I am one of the very few journalists--to my knowledge, in fact, the only one--who ever physically set foot inside the super-secret Foreign Intelligence Surveillance Act (FISA) Court." "I studied it obsessively." "I learned, in some detail, the contours, value, and the limitations of FISA at a time when very few people cared about it." To The New Republic, this sounds impressive, because they think it constitutes a persuasive (even necessary) foundation for someone to begin an argument by insisting, based on nothing, how much more knowledgable they are than everyone else.

In fact, Wittes' insider credentials are so impressive that he can simply decree the truth about issues without even bothering to offer any rationale or facts at all. His entire article is devoid of any facts or arguments. He simply assures us that he knows so much more about FISA than you do, and because of how much he knows, he realizes that these matters are way too complicated even for him -- let alone for you -- to form an opinion about whether the President did anything wrong here. This is his whole "argument":

I don't know what the program is. I don't know whether it was lawful before the recent change. Truth be told, I don't even understand what the change announced in Gonzales's letter really means. I can arrange the facts in the public record so as to describe a program that would, in my view, offend the Constitution. And I can arrange the facts in the public record so as to describe a program that would not, in my view, offend the Constitution. I can imagine a program outside of FISA that the law should be amended to accommodate. And I can imagine a program that violates the FISA precisely because it involves the kind of warrantless surveillance the law was passed to prevent. What's more, the more I learn about this program, the less I understand it.

For the eager-to-please, self-styled Beltway insider-experts, a failure to form a clear political opinion is the mark of both intellectual and moral superiority, of emotional maturity, and is the hallmark of that most coveted Washington virtue -- seriousness. Unlike you, who has formed one of those dirty opinions that the President has no right to break the law, Wittes understand that these matters are much, much more complex and sophisticated than that -- after all, this involves computers and national security threats and data and things you cannot possibly begin to understand -- and it is only your ignorance, your extremely unserious partisanship, that has enabled you to think that you are in a position to oppose or condemn what George Bush has done here (TNR's Jason Zengerle long ago pronounced
that "some of the outrage [over the NSA scandal] is in fact outrageous").

Like most of these pundits, Beltway journalists, and think-tank "fellows," Wittes wants the President's lawbreaking to implicate all sorts of murky and complex matters because, that way, the expertise which Wittes thinks he has would be needed. It would mean that only Wittes, but not you, is qualified to form judgments and that your obligation would be to listen to him and rely on what he says, rather than form your own views. So he asserts that there are all kinds of complicated issues (never identified) which only insiders can understand and which prevent any meaningful opinions to be formed by non-insiders (i.e., the masses).

As is so often true with articles like this one in The New Republic, and similar venues, Wittes' eager attempt to show how much more than everyone else he knows ends up revealing the precise opposite -- a profound ignorance regarding the issues about which he is purporting to enlighten us all. The FISA law, as intended, is one of the clearest laws in the U.S. Code, and the issues raised by the NSA scandal are everything but complicated or murky.

I think everyone other than Wittes and a handful of still-confused Bush followers understands now that the U.S. Code provides that "the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . may be conducted", and FISA itself provides that "A person is guilty of an offense if he intentionally (1) engages in electronic surveillance under color of law except as authorized by statute."

The administration admits that the eavesdropping it has been conducting outside of the FISA court -- whatever that might entail -- is precisely the type of eavesdropping for which the FISA law requires a court order. And the fact that the administration has now agreed to conduct this same eavesdropping under the purview of the FISA court by itself proves that this eavesdropping is the type covered by FISA (otherwise, the FISA judges would have no jurisdiction to supervise it). For that reason, Wittes' grand conclusion is completely bereft of logic and just factually wrong on every level:

For whatever it's worth, here's my best guess--and, I stress, it's only a guess--about what this NSA program was all about: I suspect it was an earnest attempt to address problems that the drafters of the FISA would have been mortified to learn they had created for the intelligence community. . . .

This hypothesis could be totally wrong. The point is that, without knowing the precise contours of the program, it is simply impossible to evaluate it against a complicated and subtle law written at a time when the computer age was still in its infancy. Some day, we will finally learn what the program really was and why it couldn't, and then could, be approved through the FISA Court. Details will leak, or the technology will become too obsolete to warrant continued protection. When that day comes, those who insist that no possible combination of technology, law, and national emergency could excuse bypassing the court may find themselves embarrassed. . . .

What facts could possibly emerge that make us all realize how Good and Right the President was to break the law, or for us to conclude that he didn't? Wittes doesn't bother to identify such possible facts, because none exist. By definition, none can exist.

FISA -- at least the parts relevant to the administration's lawbreaking -- is not a "complicated and subtle law" except to people who do not understand it or who want purposely to obscure it. And one does not need to know "precise contours of the program" in order to know that the President broke the law. That he engaged in the precise eavesdropping without warrants for which FISA requires warrants renders all of Wittes' very, very complicated and angst-ridden speculation completely irrelevant.

But this is how this sort of pompous, self-styled partisan-transcendence almost always operates. They think that things like emphatic beliefs and principles -- and especially stern criticism of our Serious National Security Leaders -- are for the lowly, anti-intellectual masses. The true guardians of wisdom and serious political thought in our society struggle endlessly with complex intellectual dilemmas and never reach any definitive conclusions because they are too smart and too serious for things like convictions or beliefs or things as shrill and irresponsible as accusations of wrongdoing against a sitting wartime President
(the classic case illustrating this mindset was when The New Republic's Jonathan Chait chided those whom he revealingly labelled as "partisan hysterics" -- meaning those who objected to his magazine's defense of Ann Coulter and thus, unlike the complex and thoughtful Chait, failed to appreciate what a "clever, interesting, very well-executed" intellectual achievement it was).

The impact of this petty, self-regarding mentality is hard to overstate. In the run-up to the invasion of Iraq, it manifested as endless condemnation against war opponents on the ground that war opponents were simply too shrill and emphatic and failed to grapple with all of the fascinating, multi-layered, theoretical challenges which any serious, complex political thinker had to confront when pondering Iraq.

And the same thing is occurring now with Iran. Only "partisan hysterics" would take the position that a military attack on Iran is unwarranted, unnecessary, and insane. More sophisticated, trans-partisan, serious thinkers understand that the issue is far more complex than that and cannot be reduced to such crass partisan certainties.

This really illustrates the core of why our pundit class and Beltway opinion-making mechanisms are so corrupt and worthless, but also so destructive. The whole point -- the only objective -- of Wittes' article, and of columns and articles from most of our establishment pundits, is to establish their own special place of wisdom and insight. To achieve that, they reduce all political matters to nothing more than grand intellectual puzzles, and equate any real beliefs with primitive ignorance. That is what they mean by heinous, lowly "partisanship" -- genuine political convictions.

There is no place for hard-core beliefs or passion and especially not for anger. Such emotions are just the misguided stirrings of the masses. And thus, a President and his political movement start disastrous wars, are provoking still new ones, systematically and deliberately break the law, destroy U.S. credibility, and introduce a whole array of radical and destructive measures. But those are all just fascinating intellectual matters which we should ponder with delicacy and civility and mild, restrained discourse. None of them warrants any strong reactions or condemnations.

And so the super-smart, insider pundit class merrily buzzes along, never forming a definitive thought or opinion about anything other than to haughtily condemn those who object to what the President and his political movement have done and plan to do. Regarding the destruction which this President is wreaking on the country, Wittes summarizes how the truly smart, sober, non-partisan experts (as opposed to the partisan hysterics) should react: "'I don't know' seems like a good place to me."

UPDATE: The Washington Post's Dan Froomkin has published a superb list of basic journalistic rules which ought not be controversial but which are nonetheless routinely violated by our nation's press corps (h/t Jay Ackroyd and Christy). Just fathom how much more effective and meaningful our media would be if they complied with these minimal guidelines.

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