Illustration via Max Fleishman (CC-BY)
When FBI Director James Comey told an audience at Kenyon College on Wednesday that Americans should reconsider the value of unbreakable encryption in a world of persistent threats, he was addressing a conflict far broader than whether his agency could unlock a suspect's iPhone. He was wading into a debate over the course of national-security law that has emerged as one of the central conflicts of post-9/11 America.
On Friday morning, in one of the final events of Kenyon's biennial political-science conference, a panel of experts discussed the national-security approaches of Presidents George W. Bush and Barack Obama; the relationship between federal laws and local police practices; and the rhetoric of officials, like Comey, who consistently push for broader government power.
Charlie Savage, a national-security reporter at the New York Times, opened the discussion by recounting a discussion he had had with Greg Craig, President Obama's first White House counsel, about Obama's decision to preserve—and in some cases expand—the far-reaching surveillance state he inherited from President Bush. As Craig explained it, Obama's lawyers heard from the leaders of the intelligence community that the government's programs were both necessary and legal, and they stopped there.
“They didn’t ask, ‘Is this American?’” Savage said. The Obama team, intent on rectifying the perceived lawlessness and rhetorical overreach of the Bush administration, focused on grounding everything the government did in the law—brushing aside many civil-liberties questions, including whether a program comported with American traditions of liberty.
In his remarks at Kenyon, Savage reiterated the argument he made in his 2015 book Power Wars, about the difference between rule-of-law and civil-liberties critiques of national-security policy. When Obama’s liberal critics accused him of acting like Bush on surveillance issues, they meant it in a civil-liberties context. Obama's officials, Savage said, rejected this criticism because they were looking at things through a rule-of-law prism—and in that context, they believed, they were nothing like the Bush officials, who championed controversial legal theories about the commander-in-chief being able to override statutes in the name of national security.
Jameel Jaffer, deputy legal director at the American Civil Liberties Institute, took issue with Savage's framing and presented a different view of two ways to criticize national-security policy. Some people, he said, were concerned with how the Bush administration saw the relations between the branches of government (namely that Bush, as president, could trump Congress and the courts in national-security areas). Others were worried about how Bush's programs changed the relationship between government and citizenry.
People cared that Congress and courts weren’t involved in Bush's original warrantless-surveillance and military-detention programs, Jaffer said, but they cared more about the impact of those programs on their lives.
Jaffer's view was that the Obama administration “found statutory arguments to get to more or less the same place” as Bush on many national-security issues. Thus, he said, they could not be praised for caring more about the rule of law, per se, because, in his view, they simply construed the language of the laws to suit their policy goals.
When an administration essentially twists statutory language to permit it to do whatever it wants, Jaffer said, “the phrase ‘rule-of-law’ doesn’t fit comfortably with what you are actually doing.”
Chris Calabrese, vice president for policy at the Center for Democracy and Technology, agreed that Obama had “essentially ratified” Bush-era programs by declining to end them upon assuming office. What's more, Calabrese said, Obama's approval made the programs bipartisan, shielding them from many common political accusations while normalizing surveillance practices that, he said, would have appalled people had they foreseen them in 2002.
Calabrese also expanded the conversation to the state and local level. While the federal government develops technology like Stingray devices and policies like mass surveillance, local police often adopt these tools for their own work. Lawmakers, said Calabrese, must place the limits on these approaches, because at the investigative level, police will always do the most they can do; that is, after all, their job.
This interplay between federal and local tactics can profoundly affect a citizen's relationship with her government. Calabrese described a technique called "parallel construction," in which a spy agency learns something incriminating about an American and tells a law-enforcement agency how to discover it in a "clean" way that will be admissible in court. Americans arrested for crimes discovered in this manner cannot contest the real methods used to discover them, because those exist within national agencies that are subject to different rules.
Julian Sanchez, a senior fellow at the libertarian Cato Institute, sharply criticized Comey's Wednesday night remarks about encryption and its effects on investigative practices.
Comey was “rhetorically really masterful,” he said, using measured language to urge people to accept the need for a new “balance” between individual rights and government demands. By casting this balanced approach as the only rational one, Sanchez said, Comey implicitly characterized the status quo—itself the result of decades of laws and exemptions—as “absolutist.”
As an example, Sanchez noted that Comey had mentioned the Communications Assistance for Law Enforcement Act of 1994, which required companies to be able to comply with wiretaps but specifically excluded situations where companies did not control the ability to decrypt communications. Instead of accepting that CALEA was the result of a political compromise, Comey characterized it and the resulting legal environment as an absolutist position in favor of privacy.
Sanchez urged the audience to worry about this argument, saying that, when policymakers who grow uncomfortable with current surveillance law describe it as unacceptable and in need of rebalancing, this produces a “ratcheting toward ever-greater surveillance.”
"Architectures are stickier than rules," Sanchez said. “The architecture we construct on the premise that the legal restrictions on it will inhibit its use will outlast those rules. The rules can change much faster than the architecture.”