Privacy discussion with Hagemann Continued: Citizens Spying on Each Other

Links to articles in the present discussion, in order from least to most recent:

Original article by Hagemann

My first response

Hagemann’s response

 

Continuing a conversation about the right to privacy with the Niskanen Center’s Ryan Hagemann, I want to discuss the particular issue of privacy violations in interpersonal interactions; that is, between citizens, not involving corporate or state violators. I think this is an important topic for two reasons:

(1) Understanding what constitutes a privacy violation in an everyday person-to-person context gives more relatable grounding to controversies regarding privacy in relation to complex systems and institutions.

(2) This topic provides an opportunity to examine the curious feature of privacy violations, by individuals and by the state, that their harm lies in the subjective experience of the violated party, and thus only in their discovery.

 

Agreement and Disagreement

In summary, so far, Hagemann and I have agreed that, at least in the modern Western political context, people share an appreciation for the intrinsic–as opposed to merely the instrumental–value of privacy. We agree that this conception of privacy as something intrinsically valuable is adequately described as “freedom from accusatory observation”.  While people desire privacy for a variety of instrumental reasons, this particular understanding of the intrinsic value of privacy best explains several important modern controversies involving privacy violations by the government. The two I have discussed most at length are the controversies surrounding spying by the NSA and the overpolicing of housing projects.

We disagree about the scope of application of this conception of the intrinsic value of privacy, in particular about whether it applies to typical cases of privacy violations of one citizen by another. Hagemann has argued the need for

a tripartite contextual distinction for conceptualizing privacy based on possible harms that may result from violations: harms that result from invasions of privacy by (1) government, (2) corporations, and (3) individuals. Each of these actors have substantially different harms associated with their violation of individual privacy, and each will accordingly warrant varying degrees of control.

I  argue for closing the gap a bit between (1) and (3). I disagree that the nature of the harm in violations of privacy, on the one hand, by the state, and on the other, by individuals, is necessarily different, even if it is the case that different sanctions are appropriate in the two types of cases.  Privacy as “freedom from accusatory observation” does apply to two different common cases of privacy violations by citizens against other citizens, one contemporary and one relatively timeless. These are the cases of violations of “safe spaces,” as defined in this generation’s left-wing university culture, and of intrusions by voyeurs.

 

Safe Spaces

The purpose of “safe spaces,” used properly, is to protect people from the judgement of others while they are exploring sensitive or controversial aspects of their identities. Someone coming out of the closet, to name one example, often needs privacy because she lacks the confidence to discuss her explorations with strangers, particularly with strangers who lack the personal experiences necessary to understand the complexity of the explorations in question, and who may thus cause harm via ignorant judgement.

For this reason, modern universities tend to have institutions such as Queer Resource Centers or Black Students’ Associations, whose purpose is to provide a private space where people with similar experiences, usually uncommon or marginalized experiences, can discuss them away from the judgmental scrutiny of the public. Sometimes the term “safe space” does not refer to a physical location, but rather to an event or an institutional setting, such as a presentation, or a workplace or classroom environment. The justification for establishing such spaces is that the people who need them have lived under constant judgment in their place of birth, in their younger school years, or in society at large, and thus need a common space designed to be free of scrutiny.

Violations of safe spaces are said to occur when an uninvited, unsympathetic outsider judges the atypical, or non-normative experiences of someone said to be in need of a safe space for the reasons mentioned above. Such a violation is exemplified by, for example, intruding on a private meeting for people discussing their emergent sexual identities in order to counsel repentance or otherwise loudly proclaim one’s opinion, or publishing the names and statements of students attending such a meeting. Provided that the safe space in question is reasonably expected to be a closed space, event, or setting, or that the topic of discussion is one of personal rather than public relevance, the practice of securing and defending such a space seems worthwhile and defensible. It should be perhaps no more controversial than seeking a “safe space” with a psychologist behind closed doors.

There is a similarity between this case of privacy violation and the two others I have mentioned: the overpolicing of public housing projects and NSA spying. All of these cases involve the experience of accusatory observation–that is, the experience of having the moral or legal status of one’s behavior evaluated by a stranger. In the case of “Stop and Frisk”, residents of apartment buildings experience the watchful eyes of police suspiciously scanning for violations of petty offenses, and are made to feel  implied accusation of some inherent criminal or socially deviant tendencies. In case of NSA spying, victims of dragnet surveillance live with the justifiable fear that their personal communications about sensitive religious, political, or strictly personal matters are being scrutinized for suggestions of criminality.

The example of safe spaces suggests that the experience of having one’s privacy violated by another citizen can, in at least some circumstances, be similar enough to that of a government violation of privacy that there is no justification for insisting on completely separate moral categories for governmental and non-governmental privacy violations. To the contrary, empathizing with the experience of having a “safe space” violated can lead to a more concrete understanding of the moral problems with dragnet collection of metadata by the NSA.

The America legal tradition invokes the right to privacy in both contexts. The earliest mention of such a right in U.S. jurisprudence, and arguably the concept’s most systematic treatment since, was in a monumental paper by Justice Brandeis called “The Right to Privacy”, authored before his famous dissent in Olmstead v. United States, which employed much of the same logic as the article. While the paper was motivated by concerns about popular gossip, the Olmstead case concerned government wiretapping of private telephone conversations. And voyeurism statutes in some states, such as Ohio, Louisiana, and Delaware, contain explicit mentions of a right to privacy as well.

Such continuity in American jurisprudence does not itself demonstrate a philosophical similarity between privacy in these two contexts. It does, however, suggest the potential relevance to jurisprudence of such a connection established on independent grounds.

 

Voyeurism

I argued in my last post that the experience of oppression by accusatory observers centrally involves shame. People feel shame about a variety of things–their bodies, their beliefs, their habits–and can be justified or unjustified in their shame. That shame can be unjustified, merely an unconscious tendency, is crucially ignored by many people who trivialize the importance of privacy protections. As I said in my last post:

This point is not to be confused with the common criticism of privacy rights that those who are doing nothing wrong need not be concerned with privacy protections. This is the opinion, for instance of the legal theorist and 7th Circuit Court of Appeals Judge, Richard Posner. The truth is that anyone who thinks he is doing something wrong, on either a conscious or unconscious level, has reason to be concerned with political privacy. Almost everyone feels shame. But the fact that a person is ashamed of some aspect of her life does not necessarily mean that she has done anything morally wrong, and it certainly does not mean that she has violated the law.

I would argue, as a human person and a product of Western society, that my choice to be clothed in public at all times regardless of weather is due at least partly to shame about my body. This taboo is not shared by all cultures in all time periods. It is also not universal among people of all ages in our own culture: at some point between infancy and adulthood, the superego imposed by society tends to drive an American to be ashamed to be naked in public. In fact, not all Western adults feel such shame–such is the point of the nudist subculture, within which voyeurism as an act of harm is a practical impossibility. Thus, while it is implausible to say that a peeping Tom is implying an accusation by watching you, it is not so implausible to presume that you would feel guilt on an unconscious level upon discovering that you had been watched. The harm, in this view, is in the feeling in the victim upon discovering that he has been observed doing something he believes that he should be ashamed of.

The matter is ultimately not this simple. One might also feel, upon discovering that one has been watched in this way, a sense of insecurity and violated trust not simply reducible to shame. Furthermore, the two political examples we have been discussing–NSA spying and overpolicing of housing projects–involve specifically the experience of being continuously spied on while being continuously aware of said surveillance. In the case of voyeurism, for this analysis to apply, voyeurism would have to be ongoing and the victim would have to be somewhat powerless to stop it, for example, because illicitly obtained surveillance footage has been already made widely available.

 

The Conundrum of Undiscovered Surveillance

While my previous political examples have involved the oppression experienced under ongoing surveillance of which the subject is aware, the chronology of surveillance-induced harm is not always concurrent; harm can be done after surveillance is already over. Imagine the psychological disturbance that would result upon discovering that your next door neighbor has been videotaping you for years, or for that matter, that the government has been doing so, but that the offender has stopped. This may be worth further exploration: is this a different sort of violation?

And here is a harder conundrum: what is the harm in surveillance that is never discovered? Imagine that your next door neighbor videotapes you from her apartment, stores the footage, and preserves it merely for her own, private, purposes. Your physical property is not violated, the footage is never used for blackmail or any other harmful secondary purpose, and neither you nor any third party ever discovers the footage. If this is a victimizing crime, it is a unique one, because it causes neither physical nor psychological harm to the violated party.

The fact that a voyeur is caught obviously presupposes that the victim is aware of their surveillance. But as a thought experiment, this poses a puzzling challenge to our assumptions about privacy: is privacy analogous to other rights, such as that of speech and assembly, in that there is an  autonomous space that can be objectively violated? Or is privacy rather the name for the psychological experience of feeling that one is not being evaluated by strangers? Presumably, this would entail that the intensity of the same privacy violation can vary with the subjective features of the victim, even if the nature of the intrinsic harm of the violation can be described in the same terms.

Imagine an analogous political example: a government that collects vast records of the details of its subjects’ lives–telephone conversations, e-mails, video recordings of citizens in their bedrooms and bathrooms, but never uses any of this information in criminal prosecutions or otherwise reveals this material to anyone but a small group of officers tasked with collecting it. Actually-existing governments exhibit all of the incompetencies of human beings, and thus often fail to keep such programs secret. Furthermore, due to systemic weaknesses in law enforcement, at least some of such secretly collected information can be expected to be used eventually in an unwarranted criminal prosecution. For this reason, the likelihood of harm accompanying discovery–in the intrinsic oppression of ongoing accusatory observation, or in a subsequent harm such as criminal prosecution–may be sufficient to justify restrictions on state surveillance. But in the thought experiment of undiscovered state surveillance, such a danger is non-existent. Why, if at all, is surveillance morally wrong, in itself? This thought experiment may bring us closer to the heart of the problem with surveillance, or it may lead us to the surprising conclusion that surveillance is not inherently wrong.

 

I look forward to further discussion, of the significance of connections between interpersonal and governmental privacy violations, of the conundrums of past surveillance and undiscovered surveillance, and of any further issues inspired by the flow of the conversation thus far.

 

Response to Ryan Hagemann’s “How We Think About Privacy Matters”

This week, the Niskanen Center posted a piece on privacy by Ryan Hagemann, the staff expert on privacy issues, titled “How We Think About Privacy Matters.” My views are in larger part compatible with than opposed to his, but I hope to respond to some of the questions he has raised and to take the inquiry he has initiated in a particular direction. It would be best to read Hagemann’s article before reading this post.

For further development of and context for my thoughts, please see my recent article on the subject, available in both print and online form.

Hagemann’s article has three main virtues, in my opinion:

1) It captures the uniqueness, and thus the mysteriousness, of the right to privacy among other rights essential to liberal democracy. The right to privacy is mysterious, in the first place, because it does not share with other, more familiar classical liberal freedoms–the right to assemble, the right to practice religion, the right against arbitrary detention–a moral foundation in the right against coercion. In Anglo-American politics, we are used to debating what the government should be able to force people to do, and what it should not be able to force people to do. But the right to privacy is not about force–one can observe you without telling you what to do or what not to do. Figuring out the moral foundations of this right is a puzzling task that requires thinking outside of the philosophical habits predominant in Western politics.

In the second place, the right to privacy is mysterious because it has unclear boundaries, the demarcation of which is difficult without an idea of the moral foundations of the right; and visa versa–it is hard to know what makes claims to privacy politically legitimate without knowing what constitutes the private sphere.

2) Hagemann’s article seeks common moral ground among typical demands for privacy, against the government, against corporations, and against other individual citizens: that privacy violations by the NSA, Facebook, and a peeping Tom do have something in common is suggested by popular use of the same word to describe all three situations.  Seeking similarities among these cases helps cohere everyday moral judgements, in our interactions with other individuals, with judgements about our interactions with complex systems, which gives more intuitive and thus more plausible grounding to the latter.

3) The article nevertheless makes distinctions between the significance of privacy in these three spheres. Privacy violations by Peeping Toms, Facebook, and the NSA do not have everything in common. They do not pose identical dangers; and they do not call for identical legal responses.

My perspective diverges from the author in the following way:

I don’t believe that the meaning and importance of privacy is subjective–that within the Western democratic political context, different individuals have different realities in mind when they speak of privacy, and that technological change tends to alter our conceptions of privacy. Or, rather, I agree that people can find privacy instrumentally valuable for different ends, and that these instrumental purposes can change over time, but I also believe that citizens of Western democracies share a certain conception of the intrinsic value of privacy, which is relatively permanent and is derived from the common historical experience of totalitarianism.

I think that we find privacy, understood as freedom from accusatory observation, to be valuable in itself, and that this is evident in widely shared judgments about our relationships with government, corporations, and individuals. This conception of the intrinsic value of privacy (1) helps establish a common moral foundation for disparate instances of claims to privacy, and in doing so helps elucidate the proper boundaries of the private sphere; and (2) explains the similarities as well as the differences between the applications of privacy in the three relationships mentioned.

Instrumental Purposes of Privacy

What particular purposes people have for privacy can vary with both personal and technological circumstances. An adult with career interests at stake may have more of an interest in restricting viewership of her social media activity than an unemployed minor. Someone engaged in a line of work where she is at risk of violence from former associates or clients, such as a prison guard, may wish for more thorough concealment of her contact information than the average citizen. A career criminal may want his finances to be extraordinarily opaque to the government, so that he can continue his business uninterrupted. In these cases, privacy is desired as a means to a variety of further ends. In some situations, privacy has only instrumental value.

As technology advances, certain purposes for privacy may become impossible and thus lose their appeal. In the era of the earliest American jurisprudence regarding privacy, there was much controversy over tabloids taking photographs in public, of public figures doing things that they would prefer not to be photographed or reported on, mainly for reasons of reputation. In an era of lightweight, affordable cameras, television, and internet, preventing such a thing is inconceivable; as a result, the expectation of and demand for freedom from public supervision for public figures, has largely vanished.

In my view, the observation that the content of the concept of privacy changes with personal and technological circumstances is a misinterpretation of the fact that people have myriad external purposes for privacy. There is, however, a common conception in our culture of the intrinsic value of freedom from a certain type of observation.

The Intrinsic Value of Privacy, Understood as Freedom from Accusatory Observation

The right to privacy is different from other rights prominent in the Anglo-American political tradition, because it is not fundamentally about coercion.

People feel an intuitive repulsion toward being observed in an accusatory way, as something theoretically distinct from being coerced. By this I mean that we do not like being watched by someone whose purpose is to deliberate on the moral or legal status of our behavior. And this only partly because we worry about the sanction that will follow; the observation is itself oppressive. In the case of the state–it is true that state observation often either follows on the coattails of coercion (prisons closely observing the behavior of citizens arrested for nonviolent drug offenses), or leads to coercion (the state using information obtained through surveillance to imprison people providing indirect support to ideological enemies of the government). However, state coercion and state observation are still two different phenomena.

Not all cases of accusatory state observation are at the same time cases of coercion. If the police loiter in or near the lobby of a state-run apartment complex, as in the notorious “Stop-and Frisk” zones of various American cities, causing residents to feel that their behavior is constantly being evaluated, this is not in itself coercion against residents, even if such observation may sometimes be accompanied by actual coercion. If the police catch numerous legally irrelevant personal online conversations in an indiscriminate dragnet, people may feel uncomfortable that their sensitive explorations pertaining to religion or sexuality, for example, are being monitored by anonymous agents for legal violations. The importance of privacy protections is in preventing this experience as much as preventing prosecutions based on unwarranted searches.

Furthermore, not all cases of such objectionable observation by non-state actors, are simultaneously coercive. A peeping Tom does not coerce his victims; nor do bigots who gawk at same-sex couples or at individuals of a different race or gender expression. The controversial practice of “safe spaces” on college campuses is, at its best, also fundamentally about privacy: individuals who are engaged in the sensitive task of coming to terms with their identity, whether in its sexual, racial, or other aspect, do not want to submit the details of their personal journey to public inspection and debate within their university. Using the law to address all of these cases would be totalitarian and also ultimately impossible. Cases like these are often best addressed through social pressure, which is the main tactic of what we sometimes call the “PC” movement.

Opposition to this type of watchfulness is fundamentally about shame: we don’t want to be judged by strangers. We feel shame about our bodies, about some of our personal beliefs, about cultural practices that differ from those of the majority, and about many other aspects of the way we live within the security of our personal space or the space of a family or close-knit community to which we belong.

This point is not to be confused with the common criticism of privacy rights that those who are doing nothing wrong need not be concerned with privacy protections. This is the opinion, for instance of the legal theorist and 7th Circuit Court of Appeals Judge, Richard Posner. The truth is that anyone who thinks he is doing something wrong, on either a conscious or unconscious level, has reason to be concerned with political privacy. Almost everyone feels shame. But the fact that a person is ashamed of some aspect of her life does not necessarily mean that she has done anything morally wrong, and it certainly does not mean that she has violated the law.

In the case of corporate observation for advertisement purposes, I largely agree with Hagemann. Some corporate surveillance is not objectionable because it is conducted with indifference to the rightness or wrongness of our behavior–it is simply conducted in an attempt to determine what to sell us. I may have a variety of instrumental reasons for wanting privacy in this area, but a fear of judgement is not one of them: advertisers will happily sell me anything, good or bad, that I seem to want. This is fundamentally an issue of consent: social media companies, for example, must offer explicit contracts regarding the types of information they may collect and share.

The greatest concern with corporate surveillance is that these companies enter into cooperative partnerships with the state that involve giving easy access to our private information for warantless legal investigations. A large majority of Americans in fact believe that major technology companies have a responsibility to stand between citizens and the government in this context.

The Root Causes of Encroachments on Privacy and of our Fear at This Trend

In relation to the government, my view is that privacy thrives in the absence of law. This distinguishes the right to privacy from traditional liberal rights. The right to procedural justice in criminal prosecution, for example, is secured through a system of laws that ensure a fair and efficient trial; it is ensured by the vigilance of the state. Freedom of speech is secured through laws delimiting legitimate, peaceful speech, and defining the responsibilities of government and citizens toward dissenting individuals. This involves not just constitutional checks on executive power, but other legal guarantees as well, such as police protection for unpopular protesters or publishers.

Privacy, by contrast, thrives largely as a result of the indifference or incompetence of the state. In fact, a political orientation against state observation in some contexts clashes with a traditional rights-based worldview, because, at least in theory, the more closely the state observes its subjects with an eye to preventing coercion, the more precisely it can protect against rights violations by foreign and domestic aggressors. This conflict is nowhere more evident than in the case of citizenship itself: the undocumented immigrant, in contrast to the registered citizen, lives an utterly anonymous, under-the-radar existence, but cannot safely appeal to the state for protection or enforcement of contracts.

The erosion of privacy is the result of the rise of the modern bureaucratic state. Part of the emergence of politically centralized nation states and modern economies was a movement towards standardized and precisely enforced legal codes. This was accompanied by an attempt toward what political scientist James C. Scott has called legibility: the state-imposed regularity and visibility of people and places that permit the efficient administration of bureaucratic tasks. Phenomena like social security numbers, government identification cards, and numbered streets laid out in grids are all examples of commonplace and often non-harmful instruments of legibility in modern democracies.

Both totalitarianism and modern liberal democracy are manifestations of the centralized bureaucratization that essentially characterizes modern politics. Modern democracy seeks the consistent and thorough enforcement of laws ensuring equality and fairness. Totalitarianism is characterized by the overabundance of law enforcement in the details of citizens’ lives, and the excessive visibility of theses details to the state. Communist and Fascist societies policed the details of people’s lives usually with the expressed intention of enforcing equality or consensus. Thus, in a sense, totalitarianism is an extreme to which a society with a modern bureaucratic democracy is prone, as opposed to its political opposite.

In medieval society, by contrast, the state regulated families or fiefdoms as a whole, often leaving the details of administration to custom or other local arrangements. Sovereigns had an interest in opposing anyone who conspicuously challenged their power, but did not derive legitimacy from careful administration of a standardized legal code. Thus, the presence of the sovereign in society was much more intermittent than in modern states.

Many poor countries are still like this. One particular example may give this generalization concrete demonstration. I work in Vietnam, and many nights I purchase food from a certain vendor who sells pork out of a welding shop, which is in turn attached to her house. During the day, she welds, and at night, she cooks a large vat of meat in the kitchen behind the welding shop and sells it on the floor of the shop, handling only cash and keeping no records. Residents of the city are assured of the consistent quality and cleanliness of the product through word of mouth. Needless to say, homey and convenient businesses like this are unheard of anywhere near the center of any major city in a wealthy Western country.

In addition to economic freedom, she also experiences what I call privacy. In order for this business to happen, a profound lack of interest in the particulars of this woman’s life is required on the part of the state. Her lack of distinction between commercial and residential property, as well as the informal, cash-only nature of the business, are possible because tax collection is intermittent in Vietnam: you pay taxes when and if the police become motivated to collect, which might be never in the case of a small enough business. And the sale of food in an industrial shop is made possible by a lack of health regulations: no health inspector has ever examined, let alone censured her shop. The government is either unaware of or indifferent about what she sells, where she sells it, and how much money she earns or pays in taxes. Apparently, no authority judges her economic life to any significant degree.

Of course, in Vietnam, freedom like this only exists in scattered contexts. The Vietnamese lack various traditional liberal freedoms essential to democratic citizenship, such as voting rights and freedom of expression, guaranteed through methodically enforced law in Western states. But one can criticize the latter while learning from the former aspect of Vietnamese culture; and one can adopt an analogous attitude toward what is simplistically termed “development”.

Many areas of our lives in wealthy Western nations are less private because our political institutions are more efficient and competent, and because our political culture places an emphasis on bureaucratic efficiency and consistency in the enforcement of laws. When we look back on the norms of feudalism, or look down on undeveloped countries, we tend to glorify this transition. And we are mostly correct in doing so: it is a necessary and largely positive transition. But it ushers in a political culture which has the novel flaw of threatening the total erasure of privacy.

The Legal Implications of the Conception of the Right to Privacy as Freedom from Accusatory Observation

All people need spheres of their lives that are invisible to the state; the commonness and scope of such spaces determines where a society lies on a spectrum between, on the one hand, merely efficient and effective modern government, and on the other, totalitarianism.

We may, in this particular area, have something to learn from pre-modern government. While protections like the Fourth Amendment to U.S. constitution are indispensable preventative measures against the uncontrollable and unlimited expansion of legal authority into a variety of private realms, the U.S. constitution, and indeed law itself, may not be the only or even the most important tools in protecting privacy.

There is no explicit guarantee of a right to privacy in the United States Constitution, which itself hints at the inadequacy of the Anglo-Saxon, liberty-oriented political tradition in this respect. In contemporary jurisprudence, the right to privacy is regarded in some contexts as a substantive due process right—a non-procedural liberty that is supposed to be constitutionally protected despite not being enumerated in the Constitution. This modern way of handling the right to privacy both implicitly concedes the absence of a generalized right to privacy in the thoughts of the framers and leaves the right to privacy essentially undefined. Historically, this right has only been artificially inserted through creative constitutional interpretation within the last century, and has been defined, when at all, without recognition of the separateness of freedom from observation and freedom from coercion.

In the course of his famous criticism of the legal movement to inscribe a generalized legal right to privacy between the lines in the Constitution, Robert Bork concluded that the only coherent interpretation of these legal arguments was that they sought, accidentally, to establish the principle of a general right “to be free of regulation by law.” And it is impossible, he argued, that the Constitution would stipulate, through law, a right to be free of law.

I believe that this is true, perhaps in a different sense than he intended. The best way to ensure privacy may be a de facto lessening of enforcement of existing laws, accompanied by a restraint in the formation of new laws, and an effort to eliminate extraneous old laws. In the manner of pre-modern government, the state should exercise restraint in its attentiveness to certain areas of citizens’ lives. This may be accomplished by the election of the right representatives, who will, for example, constrain the funding and jurisdiction of certain bureaucratic bodies, such as the NSA, or perhaps abolish them. Public representatives may also redirect police resources in such a way as to de-prioritize the enforcement of minor offenses that absorb most of law enforcement’s energy in urban neighborhoods. Some of these minor, nonviolent offenses, such as drug possession, may not be worth having on the books at all.

Also important, in the context of the internet, is citizen initiative to attain anonymity. For those equally non-tech savvy as myself, here is a guide.

The question of the proper boundaries of privacy may not have a simple, categorical answer. Privacy should be thought of as something that should exist in zones that people can retreat to in selected areas of everyday life, as a relief from their otherwise thoroughly regulated existence. Privacy by its very nature must be intermittent rather than consistent. Consistent privacy would amount to, in Bork’s words, a freedom from law altogether. Securing the right proportion of privacy and state efficiency is probably an art, requiring judgements on a case-by-case basis. The more essential some zone is to the conduct of a typical day, and the less worthwhile is the law enforcement effort, the more opaque that zone should be to the state.

 

The Right to Privacy is Tocquevillian, Not Lockean: Why it matters (Molinari Review 1:1)

Hard copy here

 

Primarily as a result of recent leaks about several large-scale NSA surveillance projects by intelligence contractor Edward Snowden, the debate over the right to privacyhas experienced a new life in American public discourse. Public figures in the pro-privacy movement, such as Glenn Greenwald, Edward Snowden, and Julian Assange,often appeal to Anglo-Saxon liberal rights theory, that is, to a political traditionoriginating with the Levellers in the British Civil War and continuing with John Locke and the American framers, that understands the function of government as that of defending—and refraining from violating—certain legally delineated rights. “Negative” rights like these, exemplified in the American Bill of Rights, are actively infringed through coercion—preventing the publication of controversial writing, prohibiting religious expression, imprisoning citizens or seizing their property without due process—and passively neglected through a failure on the part of the state to prevent coercion by foreign and domestic aggressors. Such rights are intended to protect liberty. Although theright to privacy is often framed by its contemporary defenders as analogous to the former rights, it is telling that the right to privacy receives little explicit mention in the tradition of thought to which they appeal.

A much better context and foundation for the right to privacy, one sometimes also alluded to by the same advocates, is in the French political tradition, particularly in the political philosophies of Alexis de Tocqueville and Michel Foucault. This latter worldview views freedom not primarily as something demarcated by legalistic rights and characterized by the absence of coercion, but rather as something defined by the absence  of the state in the details of life—that is, a lack of state observation and subtle state control. The right to privacy is not fundamentally concerned with the liberty to do what one wants, but with security against observation, possibly even while doing what one wants. I argue that the right to privacy should be understood as freedom from observation, but furthermore, as freedom from accusatory observation. 

Presenting a case for the right to privacy in terms of the intellectual tools provided by this French tradition is advantageous for four closely related reasons. In the first place, such a presentation is more intellectually precise, in that it captures the intuitive repulsion many people feel toward accusatory state observation, as a phenomenon overlapping with but not identical to state coercion. In fact, a political orientation against such state observation in some contexts clashes with a traditional rights-based worldview, because, at least in theory, the more closely the state observes its subjects with an eye to preventing coercion by non-state parties, the more precisely it can protect against rights violations by foreign and domestic aggressors. 

It is true both that the right to privacy can conflict fundamentally with the role ofthe state to precisely enforce just laws, and, as history of twentieth century totalitarianism plainly taught us, that a substantial sphere of privacy is essential to human flourishing. It is precisely this political paradox that gives a mood of unresolvability to the portraits of politics presented by Tocqueville and Foucault. This conflict is nowhere more evident than in the case of citizenship itself: the undocumented immigrant, in contrast to the registered citizen, lives an utterly under-the-radar existence, but cannot safely appeal to the state for protection or enforcement of contracts. To some extent this conflict is also exemplified in the case of government surveillance for anti-terrorism purposes.

Second, framing the argument in this way also illuminates connections between popular opposition to the mass surveillance apparatus and that toward over-policing of government housing projects inhabited by racial minorities, another current controversy which, although not typically spoken of in this way, largely concerns the right to privacy. In this case, I argue, there is not such a stark conflict between rights-enforcement and privacy, because the simple prevention of crimes against person and property would be a much less invasive approach than the currently prevailing law enforcement strategy in these neighborhoods.

Thirdly, such an intellectual packaging of the right to privacy captures an aspect of the experience of oppression by minority groups that is neglected by the traditional rights-based worldview–the experience of the oppressive gaze of the dominant majority and its institutions. Finally, such a presentation touches on a universal human need deserving of political respect which is highlighted in the minority experience: all people need spheres of their lives that are invisible to the state. The commonness and scope of such spaces determines where a society lies on a spectrum between, on the one hand, merely efficient and effective modern government, and on the other, totalitarianism.

This mischaracterization of the right to privacy—that it is a matter merely of the absence of coercion–is not just the mistake of a few recent public figures; it is also established in international law. The United Nations Special Rapporteur, a title given by the U.N. Human Rights Council to individuals mandated to conduct fact-finding missions concerning human rights abuses, conducted a global investigation last year of state mass surveillance systems [1]. The conclusion of the investigation was that such systems as currently operated violate the individual right to privacy, as codified, most importantly, in  the International Covenant on Civil and Political Rights [2]. This is a treaty that Security Council members and many other UN parties signed in 1966, which codifies various “negative” liberties. Both positive and negative liberties concern the ability to live one’s life as one wants, in the traditional liberal sense. But the modifier “negative” indicates that these are rights against coercion, as opposed to “positive” liberties, codified in a separate document called the International Covenant on Economic, Social, and Cultural Rights, which concern entitlements to material resources [3]. In reality, the right to privacy fits neatly into neither of these categories.

The Special Rapporteur’s decision was, for obvious reasons, lauded by American privacy advocates, including The Intercept’s Glenn Greenwald, the well-known civil libertarian journalist and lawyer who acted as Edward Snowden’s media contact for the NSA spying leaks [4]. Snowden, in a different context last year, depicted the right to privacy as a negative right in the same category as freedom of speech and other rights defined in terms of an absence of coercion [5].

But people feel an intuitive repulsion toward being observed in an incriminating way, as something theoretically distinct from being coerced. It is true that state observation often either follows on the coattails of coercion (prisons closely observing the behavior of citizens arrested for non-violent drug offenses), or leads to coercion (the state using information obtained through surveillance to imprison people providing indirect support to ideological enemies of the government). However, coercion and observation are still two different phenomena.

Not all cases of accusatory state observation are at the same time cases of coercion. If the police loiter in or near the lobby of a state-run apartment complex, causing residents to feel that their behavior is constantly being evaluated, this is not in itself coercion against residents, even if such observation may sometimes be accompanied by actual coercion. More generally speaking, not all cases of such objectionable observation, by the state or by non-state actors, are simultaneously coercive. A peeping Tom does not coerce his victims; nor do bigots who gawk at same-sex couples or at individuals of a different race or gender expression. In short, the human need for privacy deserves its own separate treatment in political thinking, because the oppression of observation is different from the oppression of force.

The concept of a right to privacy thus conceived, as distinct from coercion, received its first and most eloquent exposition in several works of the French philosopher and anthropologist of nineteenth century America, Alexis de Tocqueville. Tocqueville’s life straddled the line between the pre-and post-revolutionary worlds; he thus witnessed the transformation of a haphazardly and intermittently regulated feudal society into a modern bureaucratic society, in which efficient, comprehensive, and equally applied law began to become the ideal of politics. Such an ideal is integral to democracy, but as he observed, it also presents the danger of an omnipresent government arising to achieve a precise enforcement of the laws. Tocqueville was a democrat, but a hesitant one; he was aware both of the profound injustices of feudalism and the inevitability of its demise, but also wary of the new dangers presented by modernization, which included the possibility of totalistic observation and control.

In Tocqueville’s view, democratic society places men “shoulder to shoulder, unconnected by any common tie,” thus orienting subjects in a position of vulnerability and isolation before the power of the state [6]. This is in contrast to medieval society, where individuals found their place in socially embedded chains of authority and within a patchwork of substate communities. He argues that the Catholic Church and the aristocracy, in the course of defending their traditional privileges and immunities, prevented the uncontrolled expansion of government power and preserved a general spirit of independence and freedom from the state during the Ancient Regime [7]. He also speaks approvingly of the widespread medieval phenomenon of local self-rule, made possible by the inattentiveness of state authority, in which villagers “held property in common…elected their own officials and governed themselves on democratic lines” [8]. In Tocqueville’s assessment, freedom in medieval society was extralegal, existing in certain scattered contexts as a result of the medieval state’s limited power to enforce laws and the resulting intermittent and scattered presence of the state in society. This is in sharp contrast to what he views as the politically regimented, or what we would call now the totalitarian, nature of revolutionary France.

He foretells the twentieth century phenomenon of totalitarianism, in which the dependence of asocial subjects on the governing bureaucracy rather than on a diversity of substate communities and loyalties worsens until government “remove[s] from [its subjects’ concerns] entirely the bother of thinking and the troubles of their life” [9]. To Tocqueville, totalitarianism is an extreme to which a society with a modern bureaucratic democracy is prone, as opposed to its political opposite—an insight as prescient as it is counterintuitive to modern democrats.

Totalitarianism is an extreme of what Yale political scientist James C. Scott calls “legibility,” the state-imposed regularity and visibility of people and places that permit the efficient administration of bureaucratic tasks [10]. Phenomena like social security numbers, government identification cards, and numbered streets laid out in grids are all examples of commonplace and often non-harmful instruments of legibility in modern democracies. We might say that state surveillance like that recently exposed involves an excess of legibility. Of course, as the feudal age taught us, there is also such a thing as a deficit of legibility, as oppression and violence can emerge within the gaps in the state’s Visibility.

That the right to privacy tends to lie at the periphery of the state’s ability or willingness to efficiently administer law, perhaps explains why the attempt to delineate the right to privacy has such a confused history in U.S. jurisprudence: it is possible the law may simply be a poor tool for protecting a typically extralegal freedom. This might be better accomplished by trying to lessen the enforcement of existing laws, or by citizen initiative to attain anonymity, through, for instance, the online anonymous communication software, Tor.

But one more certain source of the problem is that there is no explicit guarantee of a right to privacy in the United States Constitution, which itself hints at the inadequacy of the Anglo-Saxon, liberty-oriented political tradition in this respect. In contemporary jurisprudence, the right to privacy is regarded in some contexts as a substantive due process right—a non-procedural liberty that is supposed to be constitutionally protected despite not being enumerated in the Constitution. The modern way of handling the right to privacy both implicitly concedes the absence of a generalized right to privacy in the thoughts of the framers and leaves the right to privacy essentially undefined. Historically, this right has only been artificially inserted through creative constitutional interpretation within the last century, and has been defined, when at all, with some, but not thorough exploration of the separateness of freedom from observation and freedom from coercion.

Pro-privacy American jurisprudence’s earliest attempts implausibly inferred a generalized right to privacy from tenuous analogies to other rights or from the practical requirements of other constitutional rights. Justice Brandeis, before authoring a famous dissenting opinion asserting a right to privacy in Olmstead v. United States in 1928, wrote a paper in which he reasoned that if such a right were to exist, it would have to be theorized as something distinct from a right against physical invasion of person or property, from a right to contract, and from a right to intellectual property [11]. Invasions of privacy, for example, in the case of the unpermitted publication of the contents of another’s diary, do not amount to physical invasions of any sort. Violations of the right to privacy do not necessarily amount to a breach of economic agreement, because a party who has not consented to a confidentiality agreement may in various circumstances nevertheless come into possession of the personal information of another. This point is even more relevant in the age of the Internet and of metadata, where networks of third-party engagements are common and complex. And the right to privacy is not an intellectual property right, because it prohibits not the unauthorized profiteering off of already publicized information, but its publication in the first place.

But the insightfulness of this analysis extends mostly to his explication of what the right to privacy is not. When it came to describing the right itself, he remarked only that it ought to fall in the same legal category as already existing legal rights against psychological and emotional damage, and that it philosophically amounts to what he vaguely but not objectionably terms a “right of an inviolate personality,” and a “right tobe left alone.” He reproduced these elements of this description in his dissenting opinion in Olmstead, a case concerning the constitutionality of unwarranted wiretapping of conversations on a private telephone [12].

Jurisprudential progress for the right to privacy achieved a major milestone later with Katz v. United States in 1967, which ruled that the Fourth Amendment protected an individual whose arrest was based upon incriminating evidence obtained through an unwarranted wiretap of a public telephone [13]. In Katz, U.S. jurisprudence made one significant and correct philosophical development concerning the right to privacy. It recognized that it does not necessarily have anything to do with the right to property: invasions of privacy can take place against a person directly. The majority ruled that the right to privacy, in the specific context of the Fourth Amendment, protects not just invasions of external property, as a narrow reading of the Fourth Amendment might suggest, but personal invasions as well, as in the case of the government listening to a phone conversation without a state agent entering the booth. However, the Supreme Court denied in this case the existence of any generalized constitutional right to privacy.

The 1965 ruling in Griswold v. Connecticut, a case concerning the right to purchase and use contraception, established nothing new philosophically about the right to privacy. It propounded the legal doctrine, largely abandoned since then by the courts, that because certain amendments to the Constitution require individual privacy as “peripheral” or “penumbral” rights that in various situations enable and support those specifically enumerated rights, these amendments generate “zones of privacy” that in the aggregate amount to an unwritten right to privacy in the Constitution, applying to cases outside of those particular penumbras [14]. What is much more philosophically interesting for our purposes is the legal scholar Robert Bork’s well-known criticism of that ruling at the time.

In the course of his criticism of the concept of “penumbral” privacy rights, Bork notes that because these proposed “penumbras” protect rights such as those guaranteed by the First Amendment, which concern both private and public behavior, a right to privacy does not adequately characterize the emanating buffer zone supposed to couch these rights. What would better characterize these buffer zones, he argued, is a general right “to be free of regulation by law.” It is impossible, he argues, that the Constitution would stipulate, through law, a right to be free of law [15].

His criticism of the particular legal argumentation in question in favor of a constitutional right to privacy, is partly correct. The penumbral right to privacy does not apply to speech, such as that of a politician, designed to publicize the speaker. But not all public behavior should be so disqualified from privacy considerations. What of protests on public property? The decision to broadcast one’s views to a citizen audience on a sidewalk or in a public park, does not amount to an invitation to police scrutiny, in person or remotely, of a demonstration as a whole or of individual participants. Constitutionality aside, there is an important philosophical difference between, on the one hand, invited observation by a citizen audience, whether that audience is in agreement or in opposition, and on the other hand, the accusatory supervision of police.

And, to stray a bit from Bork’s focus, disqualification of the non-penumbral application of right to privacy in opposition to the incriminating surveillance of minority neighborhoods by police, would surely exhibit a class bias. Many of the petty drug offenses committed in and around public housing projects are identical to behavior confined to the domestic sphere of wealthy citizens who can afford to conceal this behavior in a space traditionally regarded as private.

Bork’s accusation that advocacy of the right to privacy suggests a claim to the legitimacy of an unaccountable extra-legal sphere, is actually a perceptive characterization of the freedom in question, but should be complemented by specifying that this includes freedom from both state investigation and state coercion. A claim to the right to freedom from accusatory observation amounts to a claim to a right to some significant degree of unaccountability to public institutions. The pro-privacy argument in the case of NSA data collection is that the state should be less involved in sorting out the acceptable from the unacceptable in private online behavior. Surveillance should be specifically targeted rather than generalized, initiated solely in the context of particular, warranted investigations into violent crime as opposed to being characterized by the systematic scanning of bulk-collected data. This would make the behavior of the general population of internet users more opaque to accusatory observers.

The real problem with heavy-handed mass surveillance, a lesson that we learned mostly from the extreme example of twentieth century totalitarian societies, is that being observed by the state too much of the time is an intimidating and oppressive experience. This experience will be familiar to anybody who has ever felt uncomfortable as a result of the implicitly incriminating presence of police pacing in one’s neighborhood or at the periphery of peaceful public assembly. It is also familiar to all citizens who are aware that the government is constantly viewing easily accessible information about their online behavior. That various means of electronic communication in modern democracies are subject to secret and arbitrary review by state authorities with vaguely defined intelligence goals is a likely cause of some anxiety, fear, and paranoia directed toward the public and private institutions that cooperate in mass surveillance.

As a separate but also important matter, surveillance also stifles more traditional liberties by encouraging withdrawal from the expression and communication of controversial political ideas, out of wariness over the possibility of state investigation. The Washington Post, in reviewing the NSA data collections leaked to the paper by Edward Snowden, found that the NSA had collected private exchanges, irrelevant to anti-terrorism, that discussed “love and heartbreak, illicit sexual liaisons, mental-health crises, political and religious conversions, financial anxieties and disappointed hopes,” among non-targets whose communications happened to have been captured in the surveillance dragnet [16]. Plausibly, citizens who use private means of internet communication—e-mail, Skype, instant messaging—to speak to one another candidly about matters of personal, political, and metaphysical significance, feel comfortable doing so under the assumption that their communications are invisible to political authorities scanning for suspicious behavior. The likelihood of such a response to NSA spying on internet activity is supported by early research at MIT, suggesting that, since the Snowden leaks, internet users have become less likely to Google keywords that they believe are likely to get them into the trouble with the United States government [17]. A recent Pew Research poll shows that a large minority of American adults have changed their internet habits to protect their privacy from the NSA [18]. A 2014 Human Rights Watch report recounted that journalists at many prominent news outlets feel a reticence unprecedented in recent history about reporting on issues of national security, intelligence or law enforcement. Journalists covering these issues have commonly radically altered professional practices to avoid government observation and report that the specter of government prosecution of whistleblowers has made securing sources much more difficult in recent years [19].

The tendency of state surveillance to violate a different sort of freedom than that against coercion has been noted by Greenwald and alluded to in a different way by Assange. Although Greenwald’s public advocacy typically portrays the right to privacy as a constitutional right and groups it with negative rights secured in the Constitution, he does not always depict it in this way. To an audience at a book tour, Greenwald presented the case for Tocquevillean privacy, remarking, “We all need places where we can go to explore without the judgmental eyes of other people being cast upon us. Only in a realm where we’re not being watched can we really test the limits of who we want to be. It’s really in the private realm where dissent, creativity and personal exploration lie” [20]. In other words, to use Scott’s terminology, we need spheres of our lives that are “illegible” to the state. Citing Orwell, Assange also elaborates the unique status of the right to privacy:

It is not, as we are asked to believe, that privacy is inherently valuable. It is not. The real reason lies in the calculus of power: the destruction of privacy widens the existing power imbalance between the ruling factions and everyone else, leaving “the outlook for subject peoples and oppressed classes,” as Orwell wrote, “still more hopeless.” [21]

Public insights like these from the movement’s most prominent figures indicate that the pro-privacy movement could go two ways: it might retain a legalistic, anti-coercion based worldview, or it might focus more on the positive, creative side of a life more opaque to state observation.

 An ideological shift toward an anti-observation worldview would enable a connection in political advocacy between criticism of the unwieldy mass surveillance state and the over-policing of state housing projects. The latter is conducted in pursuit of a panoply of minor criminal infractions and has resulted in a police culture of frequent bad arrests and intrusive over-enforcement of trivial laws, largely pertaining to drug use. One cause of popular opposition to New York’s Stop-and-Frisk policy, and to policies like it in other American cities, is surely the large-scale coercion entailed. However, part of the controversy is also over the police omnipresence itself, and the oppressive effect of being made constantly aware of the watchful eyes of the suspicious state. The burden of such constant surveillance is exacerbated in some cities by the existence of “stop-and-identify” laws, which, in stipulating penalties for not displaying government identification to a police officer, combine the oppression of force with the oppression of surveillance [22].

The police need to be less present in certain minority urban neighborhoods. Police intervention should be focused on preventing serious crimes of violence against person and property. The same minority neighborhoods notorious for constant police surveillance are also well-known for low homicide-clearance rates. A Scripps study found that clearance rates in some cities with poor black enclaves are as low as 20, 30, or 40%, significantly lower than the clearance rate for cases with white victims [23]. This finding suggests that the accusatory gaze of the state upon these urban neighborhoods primarily serves to aid the punishment of petty, non-violent offenses, many related to drug use. And the distrust that this forced comprehensive lifestyle transparency breeds may in fact hinder investigations of more serious crimes by fostering a culture of non-cooperation with police. In this case, respect for privacy does not conflict significantly  with the enforcement of negative rights, because it is likely that a strictly rights-based law enforcement approach would be less intrusive and more effective.

Generally speaking, the incriminating gaze of the dominant majority is a perpetual issue for any marginalized minority group. The twentieth century French philosopher Michel Foucault saw that in the modern world, this accusatory watchfulness is the essence of minority groups’ experience of oppression. Foucault noticed that the dominant majority marginalizes certain groups through the subtle act of creating labels and classifications for people, imposing identities on the basis of behavior and characteristics that would otherwise be incidental [24]. Oppressed groups can find themselves trapped in these categories, appealing to them even in attempting to oppose their own marginalization—people who are attracted to others of the same sex advocate for “gay rights,” even though before the gaze of modern psychiatry, there was no such identity as “homosexual” that one was pressured to wear as an alienating badge. Such is the condition of other groups marginalized on the basis of, for instance, gender or race categories invented to serve the powerful.

Foucault believed that such manipulation through observation by dominant institutions is, more generally, the condition of the modern individual, and that the modern phenomenon of state observation is closely related to the state’s task of enforcing rights. He noticed, like Tocqueville, that the unregulated freedom that arose intermittently in the medieval world as a result of the gaps in the overlapping and uncoordinated enforcement of various localities was replaced in the modern world by a much more precise and detailed manner of state control demanded by the task of enforcing individual rights, particularly, he thought, the right to property. Ironically, he argued, our very conception of ourselves as autonomous individuals is a creature of modern law, which aspires to monitor and control the behavior of all individual subjects, as opposed to monitoring in a less comprehensive way the conduct of families, fiefdoms or localities as a whole [25]. Foucault also believed that surveillance was poorly captured by a legalistic model, and tended to persist in the form of a “discursive” power, maintained through complex networks of interaction that obscured the distinction between oppressed and oppressor [26]. Operating within the framework of Foucaultian sociology, the modern field of surveillance studies, and, most prominently, David Lyon, has done important work establishing implications of modern surveillance beyond the mere violation of privacy, concerning various intricate means of social control [27]. 

In demonstration of Tocqueville and Foucault’s analysis regarding the conflict between privacy and negative rights, defenders of NSA surveillance tend to frame its purpose as that of defending individual citizens’ rights against coercion by terrorists. In doing so, they invoke a calculus of security of rights, a conflict between the state’s responsibility to abstain from actively violating rights and to adhere to its duty to defend its subjects’ rights against domestic and foreign aggressors. This presents a conundrum that a privacy advocate with the traditional negative rights worldview can not easily resolve in a way that does justice to our intuitive repulsion toward constant and intrusive observation. Contemporary privacy advocates often try to resolve this dilemma by arguing that state surveillance, in fact, does not catch terrorists, and thus does not serve our rights against coercion. This is certainly an arguable position—as former senior intelligence official and NSA whistleblower William Binney has contended, too much intelligence can be a hindrance because it gives the state too much information to sort through [28]. The call for more targeted surveillance is also a compelling evasion of this conflict of values. And as we further noted, surveillance may stifle the traditional negative right of freedom of expression, suggesting that the right to privacy may be compatible with negative liberty in the manner of what the Supreme Court has called a “penumbral right.” But even if an intrusive surveillance measure happens also to yield some anti-terrorism gains, it can still be an instance of the oppression of observation. Justice in cases like these is not a matter of balancing state violations and protections of rights against coercion, but of balancing our freedom from observation and our right against coercion by non-state parties.

To avoid the pointless difficulty of balancing a vague calculus of negative rights, privacy advocates would do well to invoke Tocquevillean freedom. This particular intellectual contextualization of the right to privacy clarifies the true depth of this debate. The debate is not fundamentally about locating the correct proportion between the defense of people’s rights through protection from non-state coercion and through abstention from state coercion. Rather, this debate is one instance of a larger and less easily resolvable divergence at the heart of the clash between statist and libertarian worldviews—a disagreement over whether we should have lives of monitored, controlled predictability, or more loosely regulated lives of spontaneous and sometimes risky creativity.

In short, framing the right to privacy as a problem of incriminating supervision, rather than simply a problem of coercion, is not just more intellectually precise and compelling. Such an understanding also has the potential to illuminate our common cause, across race, gender, and other categories, in the struggle for freedom to think, create, and  interact in unwatched spaces, whether those spaces be city neighborhoods or online communications. Important connections can be drawn between those extreme cases of oppressive observation of minority groups and the general condition of the individual at the hands of the modern bureaucratic state, in both totalitarian and democratic forms. Framing the right to privacy in this way also broaches a deeper inquiry regarding the possibility of a philosophical framework for systematically ordering the value of negative rights and of privacy.

[1] “UN Report on Human Rights and Terrorism – The Intercept.” The Intercept. 15 Oct. 2014. Web. 11 May 2015. <https://firstlook.org/theintercept/document/2014/10/15/un-report-human-rights- terrorism/>.

[2] “International Covenant on Civil and Political Rights.” United Nations-Office of the High Commissioner for Human Rights. Web. 11 May 2015. <http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx>.

[3] “International Covenant on Economic, Social and Cultural Rights.” United Nations- Office of the High Commissioner for Human Rights. Web. 11 May 2015. <http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>.

[4] Greenwald, Glenn. “UN Report Finds Mass Surveillance Violates International Treaties and Privacy Rights – The Intercept.” The Intercept. 15 Oct. 2014. Web. 11 May 2015. <https://firstlook.org/theintercept/2014/10/15/un-investigator-report-condemns-mass- surveillance/>

[5] “‘Hostile to Privacy’: Snowden Urges Internet Users to Get Rid of Dropbox.” RT News. 12 Oct. 2014. Web. 11 May 2015. <http://rt.com/news/195244-snowden-rid- dropbox-privacy/>.

[6] De Tocqueville, Alexis. Democracy in America: And Two Essays on America. Trans. Gerald Bevan. (London: Penguin, 2003). Volume 2, Part 2, Chapter 4.

[7] De Tocqueville, Alexis. The Old Regime and the Revolution. Trans John Bonner. (Mineola: Courier Corporation, 2012). Book 1, Chapter 2.

[8] Ibid., Book 1, Chapter 3

[9] De Tocqueville, Alexis. Democracy in America: And Two Essays on America. Trans. Gerald Bevan. (London: Penguin, 2003). Volume 2, Part 4, Chapter 6.

[10] Scott, James C. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed. (New Haven: Yale UP, 1998). 2.

[11] Warren, Samuel and Louis Brandeis. “The Right to Privacy.” Harvard Law Review 4.5 (1890): 193-220. JSTOR. The Harvard Law Review Association. Web. 20 July 2015. <http://www.jstor.org/stable/1321160>.

[12] Olmstead v. United States, 277 U. S. 438 (1928)

[13] Katz v. United States, 389 U. S. 347 (1967)

[14] Griswold v. Connecticut, 381 U. S. 479 (1965)

[15] Bork,  Robert.  The  Tempting  of  America:  The  Political  Seduction  of  the  Law.  (New   York:  Simon  and  Schuster,  1990).  95-­‐100.  

[16] Gellman, Barton, Julie Tate, and Ashkan Soltani. “In NSA-intercepted Data, Those Not Targeted Far Outnumber the Foreigners Who Are.” Washington Post. The Washington Post, 5 July 2014. Web. 11 May 2015. <http://www.washingtonpost.com/world/national-security/in-nsa-intercepted-data-those- not-targeted-far-outnumber-the-foreigners-who-are/2014/07/05/8139adf8-045a-11e4- 8572-4b1b969b6322_story.html>

[17] Marthews, Alex and Catherine Tucker. “Government Surveillance and Internet Search Behavior,” unpublished paper. March 24, 2014, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2412564 (accessed July 9, 2014)>.

[18] Rainie, Lee and Mary Madden. “Americans’ Privacy Strategies Post-Snowden.” Pew Research Centers Internet American Life Project RSS. Pew Research Center, 16 Mar. 2015. Web. 18 May 2015. <http://www.pewinternet.org/2015/03/16/Americans-Privacy- Strategies-Post-Snowden/>.

[19] “With Liberty to Monitor All: How Large-Scale US Surveillance Is Harming Journalism, Law, and American Democracy.” Human Rights Watch. 28 July 2014. Web. 11 May 2015. <http://www.hrw.org/sites/default/files/reports/usnsa0714_ForUPload_0.pdf>.

[20] Miles, Kathleen. “Glenn Greenwald On Why Privacy Is Vital, Even If You ‘Have Nothing To Hide'” The Huffington Post. TheHuffingtonPost.com, 19 Dec. 2014. Web. 11 May 2015. <http://www.huffingtonpost.com/2014/06/20/glenn-greenwald- privacy_n_5509704.html>.

[21] Assange, Julian. “Who Should Own the Internet?” The New York Times. The New York Times, 3 Dec. 2014. Web. 11 May 2015. <http://www.nytimes.com/2014/12/04/opinion/julian-assange-on-living-in-a- surveillance-society.html?_r=0>.

[22] Riggs, Mike. “Yes, Police Can Arrest You for Failing to Identify Yourself.” City Lab -From The Atlantic. 25 Feb. 2014. Web. 11 May 2015. <http://www.citylab.com/crime/2014/02/yes-police-can-arrest-you-refusing-identify- yourself/8485/>.

[23] Hargrove, Thomas. “Murder Mysteries.” Scripps Howard News Service. 2010. Web. 20 July 2015. <http://projects.scrippsnews.com/magazine/murder-mysteries/>.

[24] Foucault, Michel. The History of Sexuality, Vol 1. Trans. Robert Hurley, (New York: Pantheon Books, 1978). p. 48.

[25] Foucault, Michel. Discipline and Punish. New York: Random House: 1977. pp 82- 87.

[26] Foucault, Michel. The History of Sexuality, Vol 1. Trans. Robert Hurley, (New York: Pantheon Books, 1978). p. 11, 48.  

[27] Lyon,  David.  The  Electronic  Eye:  The  Rise  of  Surveillance  Society.  (Minneapolis:  U   of  Minnesota,  1994).  179-­‐198.  

[28] Angwin, Julia. “NSA Struggles to Make Sense of Flood of Surveillance Data.” WSJ. Wall Street Journal, 25 Dec. 2013. Web. 11 May 2015.

  

 

The Levellers as Left Libertarians

Original here

The seemingly unbridgeable ideological gap in America between economic libertarians, on the one hand, and on the other, those who advocate various manners and degrees of redistribution of wealth can be rationally resolved through an understanding of the significance of the concepts of property rights and redistributive justice to those who advocated them in 1640’s England, in the course of their struggle against a dominant and economically parasitic aristocracy. Sometimes, in order to resolve a certain public moral disagreement in a way which satisfies the concerns of all contending parties it is necessary to recall the common history and historical struggles of the parties in disagreement; so that common and often inexplicit moral concerns can be identified on the basis of which common conclusions about political and economic policy can be deduced. Sometimes, in other words, people in dispute on moral and political matters may actually be fighting for the same thing without realizing it.

The left libertarian ideal of a voluntaristic society composed of small property holders is of common historical significance to, and captures and harmonizes the concerns of, contending parties in this particular modern moral debate. And such harmonization is in fact central to the purpose and spirit of left libertarianism, which seeks to establish that the value of economic liberty, which is conventionally considered a “conservative” or “right-wing” ideal, is not just reconcilable with but actually inseparable from egalitarian economic ideals typically associated with “leftism”.

Identifying the origins of ideas is never a precise task, but an origin for the moral concepts and values at play in the modern public disagreement between libertarians and statist redistributionists can plausibly be located in the English Civil War, in the dispute between the Levellers and the Diggers over the proper revolutionary response to domination by the feudal-monarchial ruling class. Mid-17th century England was a time in which many of the controversies that animate modern politics, and particularly those surrounding property rights and redistributive justice, first materialized and were first explored. Later western political philosophy concerning the question of property, such as Locke and Marx, can, despite the generally unrefined and imprecise nature of the writings of these English revolutionary public philosophers, be fairly characterized as an attempt to resolve the questions broached by the English Revolutionaries of the 1640’s.

It was a time when lingering feudal property relations clashed with the beginnings of capitalist property relations, in a manner which inspired comparisons between common and private property – which are less obvious in a modern era where common ownership is a rare and mostly forgotten experience. The transition of property relations also stimulated analyses of various problems related to poverty and redistribution, problems which motivated, on account of their radical novelty, an inventiveness in moral solutions to which later thought and political practice are indebted. We are especially indebted because our modern economic situation, in which smaller property-holders and the propertyless are trodden upon by a corporatist ruling class which has a foot in both the political and the economic realms and which relies for its wealth on state-granted privilege, is analogous to the situation of the English revolutionaries, who faced a propertied aristocratic ruling class with the same general characteristics. Thus, the ideas of the English Revolutionaries are, as a philosophical matter, especially relevant to our current experience of class warfare; they were also, as a matter of history, crucially and lastingly influential upon American political culture. In short, the Levellers argued for an egalitarian distribution of private property and the Diggers for the abolition of the institution of private property itself. Let us now recall the history of the English revolutionary movement, in order to draw lessons relevant to modern politics from each of these two groups’ teachings and from a close examination of their points of difference. But despite the fact that these revolutionary camps are arguably the ancestors of the bitterly antagonistic modern ideological camps of libertarianism and communism, respectively, these two English revolutionary groups were actually inspired by the experience of the same oppressions and faced a common enemy, in the above-mentioned ruling class of the time.

To historians, the English Civil War is remembered typically as a conflict which called into question both the proper relationship between the Crown and the Parliament and the proper constitution and political role of the Church in English society. But it was also, as is convincingly argued by the Marxist historian Christopher Hill in several of his historical writings, a revolt of the lower orders of society, represented in the military, against the clerical and landowning masters of a fading feudal era. Between Charles’ accession to the throne in 1625 and the start of the Civil War in 1642, Charles I angered the Parliament primarily by, on the one hand, having a Catholic wife and instituting church reforms that made the state church more Catholic in appearance, and on the other, alternatively dissolving the Parliament, ignoring its demands, and reluctantly summoning and partially cooperating with it when his foreign adventures grew too expensive to fund in any other way. Eventually, conflict erupted between Crown and Parliament, ending with Charles’ execution in 1649. Parliamentary victory was followed by a decade of what can fairly accurately be described as military dictatorship, under Oliver Cromwell and, for a brief time, his son Richard.

During the war, Oliver Cromwell had been second-in command, under Sir Thomas Fairfax, of the New Model Army. The latter was formed a few years into the conflict through a re-organization and centralization of existing forces, inspired by a series of military blunders thought to have been an outcome of the disorganization and incompetence of the existing Parliamentary forces. The new army differed not only in its organization and efficiency, but also in its composition and ethos. It was comprised primarily of common people, with rank and promotion based upon merit rather than property. It also became a home to many religious radicals, whom Cromwell actively recruited from Eastern England, and many of whom were volunteers who enlisted with idealistic intentions. The New Model Army turned out to be a remarkable forum for the free discussion of ideas, and these ideas, due to the class makeup of the army and to the radical political leanings of the religious rebels who filled its ranks, tended to be revolutionary in nature opposing the political, economic, and religious status quo.

Another interesting feature of this army was that, in contrast to modern society, which is largely indifferent to the moral debates taking place within an ivory tower academia, in the culture of the army, and in the radical movement generally, philosophy and social and political life were wedded. Radical philosophers were the patron thinkers of the New Model Army’s soldiers, and the ideas written by the leading Leveller philosophers, Richard Overton, William Walwyn, John Lilburne, and Thomas Prince, permeated army discussions. Those in the army who were inspired by Leveller writings came to these philosophers’ defense on numerous cases of the latter’s persecution by the authorities–by, for example, petitioning for their release when the latter were imprisoned for criticizing what they perceived as the authoritarian nature of the Council of State, formed as a replacement for the King’s executive authority after his execution [1]. These philosophers could not have been more directly involved in public life, or more practically engaged with the common people’s struggle with which the former were philosophically preoccupied.

Radicals on the issue of property all agreed in locating society’s oppressors in the ruling aristocracy, which parasitically lived idle and comfortable existences off of the labor, land-rent, and taxes of the public; but these radicals did not articulate all of the same criticisms of the aristocracy, nor propose identical remedies to the subjugation of the non-Aristocratic English. Both sought an end to the economic oppression mentioned, but while the former identified the primary economic injustice which they were faced in existing patterns of private property-holding and seemed to believe that the dissemination of the benefits of private property ownership among the poor was the proper means to mitigating poverty, the latter viewed private property itself as an inevitable source of widespread deprivation and servitude, and sought a solution in communism. The Levellers directly inspired both Locke and the Jeffersonian Republicans, and those who advocated the abolition of private property articulated beliefs that were later central to socialist thought, the latter of which gives central place, specifically in its account of primitive accumulation and of the alienation of labor, to an analysis of the historical expropriation of peasants at the emergence of capitalism, a phenomenon which, as we will discuss, is at the heart of the English Revolutionaries’ experience of changing property relations.

The Levellers represented individuals inhabiting something of a range of social position. In the first place, they spoke for the yeoman farmer, a phenomenon which emerged at the twilight of feudalism and the emergence of markets. As Hill recounts, the English civil war occurred against the backdrop of the beginning of the dissolution of feudal relations, in which all individuals had been bound by basically immutable economic hierarchies based upon land-ownership, and in which land, rather than movable wealth, was as such the basis of all economic activity. Various isolated local communities had for centuries produced largely for their own consumption rather than for the purpose of domestic or international trade, and exchanged goods for labor within localities; but between the Fifteenth and Seventeenth Centuries, farmers came to produce more and more for a national, and with the discovery of the New World, an international market, and money, typically made of silver from the Americas, came to supplant the old method of exchanging labor for necessities. Accompanying the introduction of money relations were the beginnings of a division of labor, as localities sought profitability in national and international exchange instead of self-sufficiency, as well as the emergence a market for land, of which the new yeoman farmer took advantage. The yeoman farmer was a sort of capitalist farmer, who had progressed in his economic practice beyond traditional feudal relations, and who was commonly either a former feudal lord who had adapted to new economic circumstances or an enterprising peasant who had acquired his own property [2].

But while some peasants found a somewhat more independent economic role in the new yeoman social stratum, others were made landless, forced to beg and placed at the mercy of the draconian Poor Laws of the era; the Levellers also found followers among and spoke in defense of this demographic. Landlessness was affected by a combination of trends and events. In the first place, rents charged by lords, which had remained stable for centuries, began to fluctuate, partially on account of changes in the supply of land accompanying the sale of formerly monastic land, pricing many peasants out of land they had held for generations. A further cause of increased landlessness was the encroachment of aristocratic landowners upon peasant “copyholds,” traditional feudal peasant landholdings of uncertain legal status in changing times, and whose legal protection was denied by the same legislation, the Act of 1660, which abolished various aristocratic obligations traditionally attached to landowning privileged in feudal times [3]. Many other peasant land possessions which were held in common, were “enclosed” for purposes of efficiency, with titles to particular pieces of land granted to particular landowners, who were not typically the current peasant occupants of common land, but rather tended to be acquisitive large landowners. In addition to all this, during the Reformation of sixteenth century, monastic lands were confiscated, a process which involved both evicting large numbers of peasant tenants and eliminating in monastic wealth the largest source of charitable support for the poor, leaving the landless not just without the benefits of ownership but also without material necessities, and furthermore victim to the cruelty typically visited upon vagrants by the state [2]. Moreover, the greater historical context of all this injustice is that the class of feudal landlords at the time were descendants of the Norman invaders, led by William the Conqueror, who had by force, half a millennium earlier, imposed feudal hierarchy on the current peasants’ ancestors and expropriated their labor. The descendants of the conquerors were now, besides enjoying privileges traceable to the historical injustice mentioned, using the state to seek their own advantage at the expense of England’s poor, during the course of disruptive economic changes that threatened the comfort of both peasants and landlords dependent on a land-based economy. In the context of the interaction between these various trends, questions pertaining to entitlement to land appropriated from the earth or acquired through exchange, as well as questions regarding the legitimacy and relative virtues of common and private property, demanded asking but were terribly complicated to answer on account of the novelty of these issues.

The Leveller movement can plausibly be said to have begun shortly after the life-long radical John Lilburne resigned from his position as Major in the army, in protest of institutional religious intolerance. His political activity immediately following his departure from the army, caused the House of Lords to imprison him, which motivated mass protests on his behalf. Around the same time, radical liberals Richard Overton and William Walwyn published “A Remonstrance of many thousand citizens“, a radical tract which called for, among other things, an end to the Merchant Adventurer’s Comapany’s monopoly on foreign trade [1]. The latter was one of a number of state-imposed monopolies, which were sold to a few merchants, and the sales of which primarily enriched a small group of court aristocrats. State-granted monopolies had the effect of frustrating the economic activity of producers of various sizes and of a diversity of commodities, and of degrading the standard of living of the poor by raising the prices of essential goods [2]. Understandably, these monopolies were thoroughly despised by everyone but the small number of individuals among the merchant and landowning classes who benefited from them; and they were criticized frequently by both Levellers and Diggers.

And it was primarily this that the Levellers and Diggers had in common in their views: they both criticized the parasitism of the state and the old aristocracy upon the poor as well as their arbitrary cruelty toward the latter. The Levellers targeted not only the monopolies but also state-employed aristocrats for maintaining high salaries at the expense of the poor, accusing them of “the highest oppression, theft, and murder in the world, thus to rob poor people…to maintain their pomp, superfluities, and debauchery” (Legall Fundementall Liberties) [4]. They also frequently protested the imprisonment of landless debtors and beggars, and the imposition of taxes and tithes upon the general public (Level Petition of 1648) [5]. They also at times, as we will discuss, demanded the distribution of wealth to the landless.

The Diggers, or “True Levellers,” also criticized the ruling aristocracy’s parasitism upon and cruelty toward the poor through governmental means, such as through the institution of monopolies and the domination of Stuart government and manipulation of legal procedure, by the aristocracy. But the Diggers offered further criticisms of a distinctly proto-socialist flavor, targeting the concentration of wealth in the hands of the few at the expense of the labor and material deprivation of the propertyless many. In fact, it seems accurate to say that, while the Landless found advocates in the original Leveller philosophers and a home in the Leveller movement, the Diggers were exclusively concerned with the plight of the landless, and not with that of the small property owner. But, as we will see, the Diggers’ neglect of the concerns of the small property holder was apparently not motivated by belief in the intrinsic evil of private property, but rather by a pessimism, which I will later argue against, regarding the practical results of the institution of private property.

Even before the Digger Movement officially emerged in 1649, with Gerrard Winstanley’s proclamation of his communist beliefs, and with he and his followers’ cultivation, in defiance of large landowners, of public lands and communistic distribution of their product, distinctly communistic ideas regarding property were voiced from within elements of the Leveller movement. One pamphlet in particular, an anonymous piece from 1648 titled “Light Shining in Buckinghamshire“, written before the official emergence of the Diggers [6], condemns the institution of private property, on the basis of the observation that vast inequality, between the excessively propertied few and the propertyless many, as well as the servitude of the latter to the former, tends to accompany the institution of private property. Like all political radicals of the time, the author expresses his grievances in Biblical terms:

The creature man was priveleged with being Lord over other inferior creatures, but not over his own kinde; for all men a like being priveleged by birth, so all men were to enjoy the creatures alike without propertie one more than the other, all men by the grant of God are a like free, and every man individuall, that is to say, no man was to Lord or command over his own kind: neither to enclose the creatures to his own use, to the impoverishing of his neighbors…but man folling his own sensualitie became a dvourer of the creatures, and an incloser, not content that another should enjoy the same privelege as himself, but incloseth all from his Brother, so that all the Land, Trees, Beasts, Fish Fowle, are enclosed into a few mercinary hands; and all the rest deprived and made their slaves…[7]

The author of this Leveller pamphlet calls for the abolition of private property, and, in its place, an egalitarian distribution of wealth–“a just portion for each man to live, so that none need to begge or steale for want, but everyone may live comfortably.” He also, as Marx, Oppenheimer, and many others later would, traces the rise of this inequality, not to the interplay between natural human differences and the dynamics of voluntary acquisition and exchange of private property, but rather to historical violence and theft, by the Norman invaders against traditional peasant occupants. Common to Leveller and Digger writings is, in a pre-Marxian application of Marx’s general historical theory of primitive accumulation to the case of England in particular, a condemnation of Norman domination and of the original violence and theft to which then current unequal property arrangements were traceable. Interestingly, this pre-Winstanley communist pamphlet also seems to articulate something similar to the socialist theory of surplus value. The author posits that inevitably resulting from the establishment of private property is, not just widespread propertylessness, but also an unjust form of servitude of the propertyless to the rich, whereby the latter live idly off of the fruit of the labor of the former: “ye rich men…God will visit you for all your oppressions; you live on other men’s labors, and give them their bran to eat, extorting extreme rents and taxes on your fellow creatures.”

Winstanley, in a pamphlet titled “The True Levellers Standard Advanced“, similarly claims that inequality, between the excessively propertied and the propertyless, as well as the servitude of the masses to the idle rich, are inevitable results of the establishment of private property. He posits a dichotomy between the “Earth [being] the peculier Interest of Lords and Landlords” and being a “Common Treasury of relief for all.” And he criticizes an agrarian version of wage-slavery: “He that works for another, either for Wages, or to pay [landowners] Rent, works unrighteously, and still lifts up the Curse”; the only alternative, he says, is for all men to “work and eat together, making the Earth a Common Treasury.” He comes close to stating that private property is intrinsically immoral as opposed to it being immoral by virtue of its tendency to engender poverty or economic servitude; but every remark resembling the former claim, such as those asserting that the Bible commands common ownership, seems to be immediately followed or preceded by a claim that there is an empirical connection between the existence of private property and the above-stated results of the institution [8]. That is, it is not clear in the letter of the text, as with the previous text, whether he believes that, if, hypothetically, private property could somehow be equitably instituted so as to avoid the typically resultant widespread propertylessness and economic servitude, that the institution would be morally good or permissible. Perhaps he does not address this theoretical possibility because he does not consider such a state of affairs to be a practical possibility, and thus worth addressing. But it is precisely the practical possibility of such universal private ownership which is envisioned in the Jeffersonian ideal of a republic of small property-holders, and in a more radical form, in left-libertarianism; we will shortly examine the practicability as well as the justice of such an arrangement of private ownership.

But even if Digger writings do not, as philosophical precision would require, clarify whether private property would be justifiable were it possible for it to be widely enjoyed, it is clear that their moral evaluation of private property is crucially influenced by their observation of gross material inequality in the England of their time. A reading of the Digger condemnation of private property which is informed, as is proper, by a knowledge of the socio-historical context of Digger writings, must acknowledge the fundamental importance of the above-stated theory of economic causation, to the Diggers’ negative moral evaluation of private property. This context is, to repeat, one in which private property is, primarily as the combined result of historical violence and theft, and of continuous coercion of the poor by the rich through the apparatus of government, the privilege of the view, and maintained by those few with the accompanying cost of the material deprivation and servitude of England’s denizens.

But despite the fact the Levellers write in the same context, share the same enemies, and are alike concerned about the plight of the landless, they, contrary to the Diggers, defend the institution of private property, and they do so in a manner which is philosophically supportive of the modern ideal of a republic of small property-holders, and furthermore, I argue, the ideal of left-libertarian market-based anarchism. Their arguments in favor of private property seem to be, in the first place, positive in nature–that is, they defend private property on the basis of the benefits it confers upon the individual owner or on society as a whole; this is in contrast to the Lockean/Nozickean defense of private property, according to which private property is to be respected because a certain set of holdings has come to exist through, and come to be inviolable on account of, a seamless historical progression from a legitimate original acquisition of unowned Earth through a series of voluntary exchanges. Secondly, the Leveller arguments seem to be made with egalitarian, while not communistic, intention–that is, with the implied aim of, not abolishing private property, but diffusing the benefits of private ownership among many hands, including, importantly, into the possession of the propertyless many at the time of Leveller activism. The crucial difference between the Levellers and the Diggers, I argue, does not concern the question of whether the institution of private property is in theory just or valuable, but rather the question of whether private property in practice is inevitably associated with inequality and with the propertylessness and deprivation of the many. The Levellers seem to believe that equality of economic result, and, most importantly, the equal distribution of the privilege of private ownership, is compatible with the institution of private property.

Largely because, as mentioned, communism was somewhat common among the devotees of Levellerism in the army, the intellectual leaders of the movement often found it necessary to address the accusation that they themselves were communists. They did so, most of the time, by vociferously denying their intention to abolish private property, and accordingly enumerating the virtues of the institution. Lilburne, for instance, defends private property on several grounds:

In my opinion and judgment, the deceit of levelling of property…is so ridiculous and foolish an opinion, as no man of brains, reason or ingenuity, can be imagined such a sot as to maintain such a principle, because it would, if practised, destroy not only any industry in the world, but raze the very foundation of generation, and of subsistence or being of one man by another. For as for industry and valour by which the societies of mankind are maintained and preserved, who will take pains for that which when he hath gotten is not his own, but must be equally shared in, by every lazy, simple, dronish sot? or who will fight for that, wherein he hath no interest, but such as must subject to the will and pleasure of another, yea of every coward and base low-spirited fellow, that in his sitting still must share in common with a valiant man in all his brave noble achievments? The ancient encouragement to men that were to defence their country was this: that they were to hazard their persons for that which was their own, to wit, their own wives, their own children, their own estates. [9]

He argues, first, that private property is justified by the economic benefits it bestows upon society: the expectation that one will be able to keep what one creates through labor motivates an individual to work. Furthermore, he says, private property gives an individual a sense of responsibility for and devotion to his country during wartime, rooted in a sense of personal proprietary responsibility.

That the latter argument refers to military service is significant. This seems to suggest, in the context in which it is written, Lilburne’s belief that the New Model Army’s membership, of which an important component is England’s propertyless, should be given private property, in order to reinforce their fighting spirit with tangible motivation. It is possible that Lilburne was blinded by his elitism to the obvious redistributionist implications of the latter theory pronounced in this passage–that he, in Hill’s words, “assumed the immutability of existing property relations,” [10] despite the fact that his defense of private property logically implies the redistribution of property to the propertyless, or at least enclosure of common property for the benefit of the landless; however, that he did have such an egalitarian intention is suggested not just by the fact that he was well aware that the war being waged against the crown was being fought largely by the propertyless, but by the fact that he was, or at least wished to be, a patron philosopher of precisely these propertyless soldiers.

Even more illuminating and relevant to a study of the roots, in 1640’s England, of the ideal of widespread private ownership, is the Leveller petition of 11 September 1648. This petition, written by the intellectual representatives of the movement, contains several statements interesting for our present purposes: the petition asserts the importance of private property, and particularly of protecting against its infringement by the more powerful members of society; denounces communism; and suggests either undoing recent enclosures or ensuring that these enclosures grant property titles to the poor. The petition commands that Parliament work to make “kings, queens, princes, dukes, earls, lords, and all persons alike liable to every law of the land, made or to be made; that so all persons, even the highest, might fear and stand in awe, and neither violate the public peace nor private right of person and estate.” This defense of private property is obviously not a reaction to beggars stealing from the well-fed, but to wealthy landlords and government officials stealing from the common people, through, for instance, taxes, tithes, and monopolies, all of which are explicitly condemned elsewhere in the petition.

But while the petition commands of the parliament that “you would have bound yourselves and all future parliaments from abolishing propriety, levelling men’s estates or making all things common,” the petition elsewhere criticizes the legal phenomenon of enclosure in practice. As discussed, enclosure tended primarily to benefit large landlords, and typically disenfranchised peasant occupants holding land in common. The petition proposes, alternatively, returning enclosed lands to common ownership by the previous peasant occupants, or enclosing them, but with private property titles granted to these occupants rather than to aristocratic expropriators. Motivating the proposition of these two alternatives as solutions to parasitism and theft by the aristocracy, might be the reasoning that, even if land is not all made private, as would be ideal, it is better that some land be common, to the benefit of the poor, than that all land be private, but to the benefit of a few aristocrats at the expense of the many. Perhaps, rather, the leading Leveller thinkers preferred that some, but not all things be held in common, in deference to particular, long-established local expressions of communal peasant tradition. Important to notice is that these writings are not perfected works of academic philosophy but pamphlets and petitions written by rebels with immediate political goals; these thinkers may have neither consciously and decisively chosen between these two hypothetical solutions in their own minds, let alone explicitly articulated a preference on paper for one or the other.

But the Leveller proposal here of enclosing for the benefit of the poor suggests a sort of private property egalitarianism, that is, advocacy of the dispersal of private property among many hands, an ideal hinted at also, as discussed, in Lilburne’s defense of private property as a motivation for enthusiastic military service. Private property egalitarianism is, in combination with Leveller praises of the institution of private property, further implied by the essentially egalitarian spirit of the writings of pro-private property radical thinkers of the era, according to which the largest landowners of the time were evil and to which, in the words of Richard Overton, “it must be the poor, the simple and mean things of this earth that must confound the mighty and strong.” At the very least, these philosophers demonstrate frequently that they are not interested in defending the private property of the wealthiest members of English society; they are concerned, in part, about the plight of the landless, and the propertied among their supporters were small, yeoman farmers, often former peasants, who worked their own land and earned through labor the produce they consumed or sold. In their role as champions of the small property-holder’s struggle against an economically parasitic state and aristocracy, they began, with novel, if clumsy and ambiguous reasoning and economic proposals, a tradition of idealizing the way of life of the small property holder as well as a vision of a society composed of individuals with small private holdings. Traditionally, this ideal finds expression as the vision of a republic of small property-holders, alluded to in modern American glorification of the “small business owner”; combined with a fuller awareness of the profound and inevitable influence of the state in fostering and exacerbating inequality, the ideal of a society of small property-holders supports market anarchism.

The modern small property holder faces a different kind of aristocracy, one comprised of political entrepreneurs with large corporate holdings, who seek protections and enrichments far beyond what a free market would afford them and who do so at the expense of smaller less politically influential property holders. The centralizing tendencies of modern market economies are due only in part to the forces of voluntary exchange and to natural economies of scale; economic centralization in a capitalist context tends to be crucially dependent upon state intervention, and intervention furthermore which is beyond the mere protection of property rights. As such, economic centralization can theoretically be combated in different cases, both by reforms that limit the centralizing tendencies of the market, and by reforms that restrict the involvement of the government in the economy when such involvement intentionally or unintentionally has centralizing affects upon the economy. The most obvious example of the former are laws preventing the consolidation of private monopolies, and perhaps also, in a way, campaign finance regulation to the limited and superficial extent to which such regulation is effective. But there are numerous, and typically less appreciated sources of economic consolidation which are political in origin and which therefore call for minimization through permission of greater freedom from the state in the ownership and exchange of property. In fact, the latter contributors to economic centralization are more prominent, and the realization of an egalitarian distribution of private property requires, at the very least, a greater estrangement between political and economic power; in fact, probably requires, in light of the stubbornly plutocratic character of the modern state, the abolition of government. Let us examine a few political sources of economic centralization, and consider both reformist and anarchistic libertarian changes which might rectify the specific centralizing trends at issue.

Crucial to the development of modern industry, in accordance with the statist method of development which historically happened to occur, was the creation of reliable transportation infrastructure. Even if such state support to economic development were necessary, it is certainly not necessary that such infrastructure be funded out of general revenue, without discriminating in the collection of revenue on the basis of the frequency with which different individuals use this infrastructure. Large national and international corporations, which rely much more heavily on such infrastructure than small local producers, in effect receive a massive subsidy from smaller capitalists, and in doing so, benefit from artificial, politically-induced economies of scale. Reforms might be instituted which internalize transportation costs, either through more extensive toll systems, or through some type of electronic monitoring system, eminently feasible given the modern state of technology, which monitors the weights and itineraries of vehicles frequenting terrestrial public routes and charges accordingly. In fact a regime of private road construction and maintenance, as advocated by Murray Rothbard, would more effectively accomplish the same result. Not only would costs be internalized in this case, but would also generally be smaller, on account of greater efficiency and diverse innovation of private over political economic production.

With the obvious exception of restrictions that prevent the consolidation of private monopolies, most economic regulations have the effect of, to some degree, encouraging larger-scale business models, because economic regulations typically increase either or both startup and operation costs of regulated businesses. Of particular, but certainly not exclusive, concern in this regard in the United States, are licensing regulations. Occupational licensure is a regulatory practice – the textbook justification for which is its necessity for the protection of consumers against dangerous or low quality services. Licensing boards, which are primarily a state-level regulatory phenomenon, are typically lobbied for and established by members of an unlicensed profession, with the undeniable intention of inflating incomes and restricting entry, and are, furthermore, usually staffed by those same people; these boards restrict entry into a profession by criminalizing unlicensed practice and by imposing various requirements upon however many are permitted to apply for licensing, including requisite schooling and fees of various kinds, requirements which are often burdensome or prohibitive. Licensed professions possess distinctly monopolistic characteristics; and the monopolistic restrictions which maintain these professions are responsible for significantly enlarging the costs associated with proprietorship. In the United States, despite the fact that occupational licensure affects roughly one-third of the workforce, it receives relatively little attention in economics textbooks, compared with other regulations affecting labor, such as and wage controls and laws concerning unionization; and the problem of licensure is entirely ignored in public political discussion.

This is despite the additional fact that a large number of such regulations reveal themselves to be so unreasonable and unnecessary as to be comical, such as licensing requirements imposed on floral arrangers and fortune-tellers. Many regulations, such those enforced upon hair stylists or interior designers, are unjustified on account of the fact that incompetent practitioners can do no serious damage, or by the fact that consumers are perfectly capable of determining on their own the quality of the product they receive, even if consumers are not skilled enough to perform the service for themselves. Some other licensing regulations, while neither obviously absurd nor unnecessary, nevertheless do not stand up to cost-benefit analysis from a consumer’s point of view. In any case, this is a thoroughly neglected feature of American regulatory culture, which needs to be subjected at least to reform, and, for best results, replaced by total voluntarism. Monopolistic collusion between organized private economic parties and the state, whereby regulatory barriers such as licensing and capitalization requirements are instituted with the effect and often the intention of artificially restricting competition, is to some degree unavoidable so long as a state exists which can be so manipulated by organized or powerful economic actors. In a market anarchist society, there would of course be no mandatory licensing, although there would probably be various private sources of certification of and rating for products.

Of further interest are regulations pertaining to street vending. Street vending—that is, the sale of goods on public property, often through a temporary or mobile structure, is a common and largely unregulated phenomenon in many less developed economic environments, such as Beijing and Mexico City. In the more precisely regulated economic environments of developed nations, street vending is widely prohibited and strictly and usually arbitrarily regulated where it is not prohibited. This is largely at the urging of immobile business owners who sell the same or substitutable goods and thus have an interest in eliminating competition, and at the pressure of various powerful economic actors seeking to maintain a bourgeois aesthetic in the urban environment surrounding their place of operation which is incompatible with the street vending ambiance. These latter interests have a stronger political influence on account of their greater wealth and greater tax contributions; vendors, by contrast, are always poorly organized, if at all, for purposes of defending themselves against unfair policing and regulatory practices, and against political maneuvers by wealthier and more educated economic competitors. In the United States, law firms of both libertarian and leftist inclination have in recent years taken an interest in this area of public interest law. Closer academic economic attention to the street economy, as well as the establishment of efficient, consistent, fair, and ideally permissive regulatory regimes for economic activity on public property, deserve to become more urgent priorities in industrialized nations. In an anarchist society, of course, there would be no “public” property to speak of, but there would plausibly be some common property, established by convention or habit; and there would be no state through the influence and manipulation of which immobile property holders could bully such public vendors. Also possible is that private ownership of land would be much more widespread, thus making mobile vending less common or necessary.

And further examples abound. Large corporations contribute significantly to national economic productivity and to government revenue, and corporate eminences tend to occupy the same social circles as regulators and politicians and to serve as crucial contacts for the latter’s career purposes. For all of these reasons, politics unsurprisingly is characterized by numerous particular favoritist gestures toward large corporations, aside from the general systemic phenomena noted above. And regulation generally has the effect of restricting productive capabilities to larger firms, which can afford the costs and manage the legal hoop-jumping that often comes with being regulated. Only through the abolition of the state can the Leveller dream, central to the American tradition and to contemporary American discourse, of an equitable distribution of the privilege of private ownership, be reliably and substantially realized.

Notes:

[1] Quoted in Hoile, David. The Levellers: Libertarian Radicalism and the English Civil War. http://clichesofpolitics.com/Levellers.htm

[2] Hill, Christopher. “English Revolution of 1640.” Marxists.org. http:// www.marxists.org/archive/hill-christopher/english-revolution/

[3] Hill, Christopher. The Century of Revolution. p 147. Taylor and Francis Group, 1980.

[4] Lilburne, John. “Legall Fundamentall Liberties.” Online Library of Liberty. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2183&chapter=201117&layout=html&Itemid=27

[5] Leveller Petition of 1648. Online Library of Liberty. http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=2183&chapter=201116&layout=html&Itemid=27

[6] Hill, Chrisopher. The World Turned Upside Down: Radical Ideas During the English Revolution. Penguin Books, 1995. Pg 117—Hill notes the initial indistinguishability of the Levellers and the Diggers, and the uncertain authorship of the “Light Shining in Buckinghamshire” pamphlet.

[7] “Light Shining in Buckinghamshire”. Marxists.org. http://www.marxists.org/history/england/english-revolution/light-shining.htm

[8] “The True Levellers Standard Advanced: Or, The State of Community Opened, and Presented to the Sons of Men.” Marxists.org. http://www.marxists.org/ reference/archive/winstanley/1649/levellers-standard.htm

[9] Quoted in Robertson, D.B. The Religious Foundations of Leveller Democracy (New York: Kings Crown Press, 1951), p.87.

[10] Hill, Christopher. The English Revolution 1640.

How Outraged Is the Obama Administration About Torture?

Originally Published in Truth-Out, 01/05/15

In early December, the Senate Intelligence Committee released the executive summary of a report documenting the CIA’s involvement in torture during the Bush administration, both detailing the graphic horror of the torture itself and exposing the flimsiness of justifications then offered for torture. In response, the Obama administration has issued some eloquent statements that combine moral outrage with magnanimous-sounding encouragements that we all learn from without dwelling upon the misdeeds of the US government in the aftermath of the September 11, 2001, attacks. This is insincere and misleading for two reasons.

First, the Obama administration has protected all Bush administration culprits from legal punishment and almost all from investigation, thus precluding the honest national self-examination necessary to accomplish what Obama calls “moving forward.” Furthermore, contrary to the current US media consensus that the Obama administration banned torture in 2009, the US government has continued various forms of torture throughout Obama’s time in office. There has not been a fundamental change since the Bush era in the policy framework for counteracting the impulse to torture for intelligence in the face of imminent threats; suspects have merely been tortured in different locations and through a slightly altered bureaucratic process.

Although Obama promised during his 2008 campaign to “immediately review the information that’s already there” relevant to leading prosecutions against Bush administration torturers, he immediately – that is, within his first few months in power – stated opposite intentions. Glenn Greenwald has documented how the Obama administration, after initially declaring legal immunity for all CIA operatives who tortured under the orders of the Department of Justice (DOJ), subsequently feigned pangs of conscience in 2009 at the revelation of 100 different cases of torture that went beyond even DOJ permissions. These cases involved some of the abuses now detailed in the Senate report, including threatening a prisoner with a power drill, mock execution and threatening to rape prisoners’ relatives. After two years of “investigation,” Attorney General Eric Holder announced in 2011 that he had decided not to bring charges in any of these cases, except for two. In both of these cases, which pertained to severe and fatal torture in CIA black sites, Holder promptly decided to drop all charges.

This discrepancy between pre-inauguration promises and post-inauguration decisions is perhaps attributable to insincerity on the campaign trail, or perhaps to a post-election adaptation to the internal dynamics of federal politics. In James Mann’s 2012 book The Obamians, Mann recounts an effort in 2009 that CIA leadership at the time privately referred to as the “Aw, shit” campaign. According to Mann, Michael Hayden may have pressured Obama into abandoning his pre-election promise in favor of continued widespread application of “enhanced interrogation techniques.” The name derives from the hope among CIA bureaucrats that Obama would hear their advice and subsequently say “Aw, shit” to himself, upon reluctantly realizing the wisdom of what he was told. There is no conclusive evidence that this is what inspired Obama to retain and expand Bush-era torture policies. For whatever reason, Obama replaced Hayden and publicly claimed to ban torture while pardoning Bush-era offenders and continuing to torture.

Obama issued executive order 13491 in 2009, which is commonly regarded as having ended US-directed torture. The executive order repudiated torture as defined in federal and international law, ordered the closure of CIA-managed detention facilities in foreign countries “as expeditiously as possible” and set up a task force to “study and evaluate” whether extraordinary rendition – the practice of turning over detainees to foreign governments committed to US anti-terror objectives – “provide[s] an appropriate means of acquiring the intelligence necessary to protect the nation,” and to make sure that extraordinarily rendered subjects were not being tortured. To evaluate the seriousness of this order, we have to review the administration’s subsequent actions concerning the treatment of detainees both in detention facilities managed directly by the US government and in detention facilities operated by foreign governments on the US government’s behalf. Take even a brief look at the wording of the order: an essentially empty promise to “study and evaluate” extraordinary rendition, and a qualification that the term “detention facility” does not apply to CIA-managed facilities that hold individuals on a “short-term, transitory basis.” These provisions suggest, as has been confirmed, that the declaration was designed to lay the groundwork for a policy of transferring detainees, after a temporary limbo in CIA detention, to detention centers operated by foreign governments.

It would be unsurprising – as well as morally and legally insignificant – if most or all CIA sites closed down in order to make extraordinary rendition a centerpiece of counterterrorism intelligence. In truth, several of these sites remained open at least partway into the Obama presidency and probably do to this day. In the first place, the order applied only to secret prisons run by the CIA and not those run by the Joint Special Operations Command (JSOC), which answers to the Department of Defense. In 2010, one JSOC prison at the Bagram Air Base in Afghanistan was reported to have been a hub of inhumane treatment methods like forced nudity and sleep deprivation (p. 21) since Obama’s election. Part of the prison was transferred in 2012to the government of Afghanistan for detaining and interrogating Afghan suspects, while part was kept for the US military for handling foreign suspects. This prison is still open and continued, as it always had, to refuse observation by international human rights organizations, up until its transfer to Afghan ownership just after the release of the Senate report.

Also, at least as late as 2011, JSOC was operating 20 temporary holding sites in Afghanistan, where detainees were interrogated anywhere from two weeks, as the Pentagon officially claims, to as many as nine weeks. Furthermore, we know fromJeremy Scahill’s reporting, corroborated by US and Somali officials, of a secret prison in Somalia, nominally under Somalian management, but essentially run by the CIA, which directly participates in interrogations. Detainees are held in secret for long periods of time. It would be naïve to doubt that detainees are tortured at these unsupervised foreign facilities.

As mentioned, the Obama administration also tortures through foreign proxies. Extraordinary rendition began under Bill Clinton, who used the practice sometimes prior to prosecuting a terror suspect in the United States, while in other cases, as has since become the norm, he employed it to extract information through torture with no intention or prospect of legally prosecuting an individual (p. 14). Despite affirming the importance of international law in Obama’s 2009 anti-torture executive order, the president continues violating international law, including Article 3 common to the four Geneva Conventions and the UN Convention Against Torture – the United States is a party to both. In fact, the administration violated the latter, for instance, in three different ways: by subjecting detainees to cruel, inhuman and degrading treatment; by failing to investigate cases where such treatment was probable; and by transferring detainees to foreign countries that are likely to employ torture. The Middle Eastern and African countries to which terror suspects are rendered certainly fit the latter description.

We have every reason to believe that detainees are being tortured in places to which they are rendered. In the first place, the “task force” report about extraordinary rendition promised in the executive order was never made public. Furthermore, the Obama administration decided, in an unserious attempt to prevent torture, to rely on assurances on humane treatment of detainees from recipient countries, and post-transfer monitoring of detainees, neither of which were effective in preventing torture in Bush-era extraordinary rendition torture cases (p. 20).

Inhumane treatment against individuals in foreign custody is clearly an ongoing phenomenon. In 2011, an American teenager was beaten by interrogators in Kuwait with the instruction and cooperation of the US government. A similar incidentoccurred in 2010 with rendered detainee Gulet Mohammed. Yahya Weheli, a US citizen, was interrogated without due process by US officials in 2010 in the US Embassy in Cairo, and, according to his account, beaten and interrogated afterward by Egyptian police asking the same question that he had been asked by US officials. In 2010, another US citizen, Sharif Mobley was captured in Yemen in coordination with the United States, over suspicion of his ties to al-Qaeda. He has been held and tortured in secret for most of the time since then without counsel, charges or trial. This is apparently one in a pattern of cases in which the US government has held and interrogated US citizens returning from Yemen without due process. These are just the cases we know about. The fact of the essentially secret character of extraordinary rendition, combined with the existence of an official policy focusing on extraordinary rendition over direct custody of terror suspects, virtually guarantees that there are many cases of torture of which we are not yet aware.

Furthermore, to revisit a tired issue, despite the current administration’s initial promises to the contrary, Guantánamo Bay remains open and has furthermore remained culpable in exactly the ways that made it a problematic and disliked institution under the Bush administration. As Georgetown law professor Geoffrey Stone has argued, the essential legal controversy regarding Guantánamo is the presence of detainees whom the US government has judged to be dangerous, but has treated in such a way in the course of their preventative detention that they cannot be convicted in court. While Obama dishonestly claimed that the reason for not shutting down the facility was legislative Republican obstruction, his proposed solution to the Guantánamo problem prior to such “obstruction” was to relocate the prison to Illinois while retaining its policy of indefinite detention – a non-solution. Under this plan, some detainees were also supposed to be tried in military tribunals, which do not provide any meaningful due process. Some 155 detainees remain in this prison, frequently subjected to painful force-feeding procedures, among other indignities.

The Senate report is a valuable public confirmation of facts mostly already known about Bush-era torture. However, the report’s release has been accompanied by a dangerous false narrative, according to which torture is a past crime and a crime exclusive to the Republican Party. But torture is evidently ongoing, and is and has been a bipartisan US policy. This partisan political narrative, crafted by legislative Democrats with short-term, self-interested political motives, needs to be replaced by urgent dialogue about and legislative action to halt the troubling and ongoing expansion of the US government’s global torture regime.

What About the Other Iraqi Militias?

Originall Printed in Truth-Out, 11/11/14

The Dominant ISIS Narrative

Ever since ISIS appeared on the mainstream media’s radar several months ago, stories of massacres by ISIS have dominated US news. A review of just the news at the end of October and beginning of November turns up numerous stories with the same content and purpose – to demonstrate the barbarity of the US government’s current enemy in the region. The New York Times noted on October 27 that ISIS is a prime suspect in a suicide bombing in Jurf al-Skhar that killed at least 38. On October 30, The New York Times ran a story on ISIS’s violence against the Sunni Albu Nimr tribe west of Baghdad, a story picked up the next day by Time. On November 1, both NBC and Fox covered the killing of 50 tribesmen in Anbar province.

Needless to say, these are horrible atrocities; but that is not why they are being reported. These stories are making US news because they offer justification for the most recent phase of the US invasion and vindicate the occupation as a whole. Stories of atrocities committed by Islamist militias allied with the United States in the fight against ISIS are being sparsely reported. An October Amnesty International report reveals frequent massacres by Iraqi Shiite militias, currently pardoned and protected in their crimes by the Iraqi and US governments, because of these militias’ direct connection to the Iraqi government and because of their common opposition to ISIS.

This study was acknowledged by several news outlets on the day of its release, but reporting since then has generally reverted to its former narrative, oriented around the destruction caused by ISIS and the dire need for US assistance, with very little mention of the dangers posed by these Shiite militias. There has certainly been little if any mention of the fact that these militias have been instrumentalized and protected by the Iraqi government long before ISIS. (Amnesty International report, p. 17) And the larger lesson suggested by this report – that the United States is a major contributor to the violent situation in Iraq, having both instigated the civil war to begin with and supported and protected some of the most bloodthirsty participants who emerged – has escaped notice by major media. Stories of violence by Shiite militias appear in isolated and occasional reporting, far outnumbered by stories, contextualized in a larger news narrative, detailing the crimes of ISIS.

Amnesty International Report Challenges the Dominant Narrative

The Amnesty International report mentions numerous instances of violence by militant groups opposed to ISIS, such as the Badr brigades, the Mahdi Army, the Madhi Army offshoot, Sarayah al-Salam (Peace Brigade), Asa’ib Ahl al-Haq (League of the Righteous), and the Hizbullah Brigades, in the Sunni cities of Samarra and Kirkuk. These groups have participated in frequent attacks against and abductions of, mostly Sunni, civilians, sometimes as retaliation against similar attacks by ISIS (p. 11) and other times with financial motives. (p. 6)

There are more than 170 confirmed cases of young men being abducted from the city of Samarra since June, all of whom have been either confirmed dead or not seen since. More than 30 of these men were abducted and killed on a single day in June. (p. 10) A report by Human Rights Watch (HRW) earlier this year told a similar story. HRW documented 61 killings of Sunni men in the first week of July in the Baghdad, Diyala and Hilla provinces. At least 48 were killed in March and April in the vicinity of Baghdad. Mass executions of Sunnis have also been a frequent occurrence; for example, 53 were found bound and shot north of Hilla in July. Moreover, any body count will be an understatement because many people disappear without any conclusive indication of the identity of the perpetrator or whereabouts of the victim and because the Iraqi government prevents investigations into these matters.

The Iraqi government does so because all of these groups have direct ties to the government of Iraq. Prime Minister Nuri Kamal al-Maliki has actually hired these groups as security forces to police Baghdad. The head of the Badr organization, Hadi al-Amiri, was the minister of transportation until September 2014. (p. 17) Besides the kidnappings and murders mentioned, these Shiite militias have been known to make illegal arrests on behalf of the state. (HRW report) As Amnesty International reports, the government disguises militia fighters as members of the army, while giving them license to take far more damaging actions than ordinary soldiers and excusing them from the military oversight mechanisms to which official soldiers are, at least in theory, accountable. (p. 17)

The Larger Lesson

There is a saying that war makes strange bedfellows. Sometimes this is the result of a warring power with an unavoidable mission allying out of necessity with whatever parties share a vital interest. However, in wars of choice, like this 12-year-old war in Iraq, such strategic decisions amount to a decision to participate in wrongdoing in order to acquire greater international power. For obvious reasons, military intervention is always accompanied by state propaganda villainizing opponents of the intervening state – and finding monsters in, depending on the targeted party, governments or rebel movements, is rarely challenging. As is common in situations of violent conflict, ISIS is apparently just one of many psychopathic parties, both state and nonstate, currently wreaking havoc in that war-torn country. The United States has sided with some and fought against others.

The point of discussing these crimes is not to establish that the government and Shiite militias kill more than ISIS. This would be hard to prove conclusively and would also be beside the point. The point is to acknowledge the responsibility of the US government, and thus indirectly our responsibility, for whatever volume of unnecessary violence the United States happens to be involved in Iraq. This present strife among various militias must, first of all, be placed in the context of a civil war apparently resulting from the United States’ decision to destroy the previous government and try to rebuild a US-friendly civil order from scratch. The US government subsequently chose to join forces with mass-murdering fundamentalist militias not markedly different from ISIS.

This type behavior has precedents. It is easy to understand why an intervening power would gravitate toward whatever established centers of power, however morally bankrupt, happen to share interests in an unstable political situation. For instance, CIA support of the Nicaraguan anti-communist forces in the 1980s involved encouraging murderous drug lords, the most obvious counter-power to the state in Latin America, to sell cocaine to crack dealers in Los Angeles in order to fund violence in Nicaragua. The CIA also famously gave Osama bin Laden valuable experience organizing terrorism against the Soviet army in Afghanistan. Policy decisions like these will recur until we find a way to stop generating and supporting US leaders who engage in wars of choice.

US Shifts Blame to Afghan Government for Exploding Central Asian Opium Trade

Originally Published in Truthout

 

The Special Inspector General for Afghanistan Reconstruction (SIGAR), an office created by Congress in 2008 to oversee waste and fraud in US government expenditures in Afghanistan, released a report in October communicating that Afghanistan poppy production reached an unprecedented high point in 2013, even while being preceded by more than a decade of prodigious production.

This is despite the fact that the US government has devoted $7.6 billion to squashing the booming opium trade since its revival at the start of the US invasion.

The report was published along with an invitation to written responses from various departments of the US government, responses that unanimously blamed the situation on the US puppet government in Afghanistan, stating that it had not assisted aggressively enough with counter-narcotics efforts. The idea of the US government denying responsibility for the misdeeds of a state it installed through a rigged election to promote the objectives of the occupation, is absurd on its face. A review of the history of US involvement in the Central Asian opium trade up through the 2001 intervention, however, reveals even deeper responsibility.

Causes of Increased Opium Production Since 2001

As the United Nations Office on Drugs and Crime reported this year, dramatically increased opium production since 2001 in Afghanistan is one of the primary causesof a current surge in heroin use throughout Europe and Asia.

This most recent explosion in cultivation and sale of poppy is due, first of all, to the overthrow of the Taliban, which had, with the pressure and assistance of the UN, enforced a brief but successful opium ban in 2000. UN research released just a week after the invasion began reported poppy production as being down by 91 percent since 2000. The subsequent opium explosion is attributable also to the importance of the poppy crop as a funding source both for the Taliban insurgency and for corrupt officials at all levels of the Karzai administration.

The US government has attempted various methods of reducing opium production, from eradicating opium fields to providing farmers with alternative crops, to prosecuting traffickers and confiscating their product. Evidently, none of these methods has had an impact, most fundamentally because demand for opium from international consumers, as well as the demand of the Taliban and the state for bribes from this pool of profit, has remained unaffected.

Actually, a plausible argument can be made that directly seizing crops increases profits acquired by the higher-skilled smugglers then required, which in turn makes available a larger source of funds for corrupting the agents of the state, who ensure the safe passage of crops to the market. Corruption apparently reaches higher levels of government as well.

Narcotics-Related Corruption Within the Afghan State

A January report by SIGAR indicated that Afghanistan’s banking system is thoroughly opaque and unregulated [introductory summary]. This strongly suggests, as does old news, that Afghanistan’s banking system is a vehicle for money laundering and drug trafficking. Afghanistan’s capital is home to a number of luxurious estates owned by government officials, estates referred to by the locals as “poppy palaces,” all of which are far too expensive for the salary of a government employee.

The US Department of State itself acknowledged systematic involvement in the opium drug trade by officials at all levels of government in a 2009 report. Karzai has consistently resisted attempts at oversight, even banning US advisors from working with the central bank in 2011. Earlier this year, Karzai also resisted an effort at international oversight of Afghanistan’s banking system; according to Rangin Dadfar Spanta, Karzai’s national security adviser, he did so because of provisions in the currently proposed anti-laundering bill that would impose regulations to prevent misuse of the banks by political figures and their family members and close associates.

None of this is surprising, given Karzai’s history with the Northern Alliance, an anti-Taliban group formed in the ’90s, known for its involvement in the drug trade, and given the prominence in Karzai’s government of Northern Alliance warlords. Shortly after the fall of the Taliban, Karzai instituted a national holiday celebrating Ahmad Shah Massoud, the military commander of the Northern Alliance. He includedMassoud’s younger brother in his first cabinet, as well as Northern Alliance members as foreign and interior ministers. This was apparently intended and approved by the US government, which rigged the elections by intimidating Karzai’s electoral opponents.

Origins of the Problem: Opium in the CIA’s war vs. USSR

Northern Alliance involvement in the drug trade is common knowledge. Notably, during the brief period before the invasion in which opium production was suppressed, the only parts of the country where it persisted were in Northern Alliance-controlled regions. But Afghanistan’s role as an international opium supplier actually predates the Northern Alliance.

During the Soviet-Afghanistian conflict, in which the US government armed and trained radical Islamist Mujahadeen fighters against the Soviets, Karzai was a CIA contractor tasked with funneling US aid to the Taliban through the laundering of drug money. The CIA and Pakistani Intelligence partnered in sheltering and encouraging opium production during this period to fund these radical Islamist opponents of the Soviet state. Furthermore, at the time, the US-supported Taliban forced farmers to produce opium as a tax to support the anti-Soviet effort, a practice in which the Taliban still engages.

Charles Cogan, the orchestrator of the CIA operation in Afghanistan in the ’80s,explained the strategy essentially as one of giving priority to the anticommunist fight over the anti-drug fight.

“Our main mission was to do as much damage as possible to the Soviets. We didn’t really have the resources or the time to devote to an investigation of the drug trade.”

This was an informative admission, but was also somewhat misleading: The CIA did not fail to investigate the drug trade in Central Asia – the intelligence agency actively fostered it. In fact, before the Soviet-Afghanistan war, the opium trade was much smaller and contained within the region; and there was certainly no heroin coming out of Afghanistan. The Soviet-Afghanistan war coincided with a dramatic and sudden increase in opium production for international markets. There was nothing before the 1980s remotely resembling the truly unprecedented current heroin trade, which has caused addiction epidemics all over Europe and Asia.

The blame-shifting game the US government is playing in response to this report is clearly a cynical lie. It is in a sense true that the government of Afghanistan is not doing much to stop the opium trade. But the US installed this government with full knowledge of the fact that it would be run by drug lords, and the participation of Afghanistan in the international heroin trade is a phenomenon directly traceable to earlier US intervention. And the report itself, while effectively exposing waste of taxpayer money, is intentionally ahistorical in its criticism, contextualizing its investigation of the opium problem in post-2001 Afghanistan.

Let us not forget the whole story behind how it came to be that the American taxpayer is subsidizing the international heroin epidemic.

 

Happiness and Individuality in Mill (Pharmakon 3:3)

Pharmakon

John Stuart Mill intends to make a utilitarian case for individual freedom. Mill’s antipaternalism is a component of his argument for individual freedom, and is justified in large part by his arguments for individual freedom in general. But reviewing his anti-paternalism as well his paternalistic exception to the Harm Principle in the case of voluntary slavery, brings to light a tension between two competing types of utilitarianism in his political philosophy, hedonistic utilitarianism and objectivist utilitarianism, both of which can be used to justify the freedom granted by the Harm Principle. The objectivist utilitarian strand in his argument holds individuality to be Pharmakon Journal of Philosophy: 3rd Issue 4 intrinsically valuable, while his hedonism presents the subjective experience of pleasure as the ultimate value to which all other values are instrumental. The objectivist utilitarianism hidden in Mill’s argument for liberty serves as a better tool for justifying his voluntary slave exception as well as a more powerful argument for liberal freedom.

Mill states that the ultimate source of all “moral obligation,” and by derivation, all norms of justice, is the Greatest Happiness Principle (185). This principle holds that happiness, defined as pleasure and the avoidance of pain, is “the ultimate end, with reference to and for the sake of which all other things are desirable.” Nothing can be desired or valued for any reason other than its being in itself pleasurable, or a means to satisfaction of further pleasures. Moral principles cannot have any ultimate justification other than the promotion of happiness, because happiness (i.e. pleasure) is the only thing that is intrinsically good.

Principles of justice, Mill says, belong to a subcategory of moral principles: principles of justice stipulate those moral obligations for which there is a corresponding right in some particular person. “Right” is defined as a claim by an individual that society is required to defend, a claim whose legitimacy is derived from the fact that its universalization as a moral imperative is productive of general utility (220-221). Mill’s Harm Principle, if we assume he is consistently applying the happiness-as-ultimate-value rule, must derive its sole and ultimate justification in such a way, because the Harm Principle is a principle of justice. The principle states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others (14)”, delineating both a moral obligation on the part of each individual member of society not to harm other individuals, and a corresponding right of each individual not to be harmed. This principle implies liberty, that is, the freedom to “pursue our own good in our own way” within the bounds of rights, rights understood as protections against interpersonal harm (17). As long as one’s actions do not harm others, they remain within the domain of liberty.

Mill’s anti-paternalism is a subset of his Harm Principle. Let paternalism be defined as “the assumption of sovereignty by society over the actions of an individual member, with the intended purpose of furthering the happiness of the subjected party.” The articulation of the Harm Principle previously mentioned is immediately followed by the statement that the individual’s “own good, either physical or moral, is not sufficient warrant” for the exercise of power by one individual over another, or by all of society against an individual (4). It is important to note though, that logically, the Harm Principle must prohibit not just the use of force when its end is the happiness of the coerced individual, but also in non-paternalistic cases where the end is the happiness of the coercer or of a third party.

Upon reaching this point, we should expect to find a fundamentally hedonistic utilitarian justification for the Harm Principle and its corollary, the anti-paternalism principle, both of these being principles of justice, both of which Mill believes necessarily have a utilitarian basis. And indeed much of his defense of liberty is a substantiation of his utilitarian claim that “mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest (18).“ An elaboration of this statement that plays a prominent role in his book is the argument that liberty is the necessary condition for diversity in ways of life, which in turn is necessary for a trial-and-error process that improves individuals and societies over time.

The individual, as well as society, is fallible in its moral judgment, and thus requires for the discovery of what is valuable (that is, conducive to happiness) the opportunity to compare various ways of life with each other in order to learn what is valuable and worthless in each life experiment, and emulating or converting the former into customs. Because all things, including ways of life and customs, are valued instrumentally for their tendency to generate happiness, Mill means in the above argument that individual freedom allows for a learning process that helps us improve our ability to achieve happiness on an individual and social level. Following this line of argument, paternalism can Pharmakon Journal of Philosophy: 3rd Issue 5 be shown to be wrong because the imposition of a mode of action upon a subject with the intention of improving his lot, prevents him from contributing his unique experiences (both failures and successes) to the wisdom of society regarding the achievement of utility. In other words, paternalism, as well as non-paternalistic violations of individual liberty, inhibit the progress of individuals and society toward greater happiness.

He also argues paternalism is wrong because a given individual tends to be better at securing his own happiness than any one else is at securing his happiness. This is true both because the individual has a greater motivation to secure his own happiness than anyone else, and because he is more knowledgeable about his individual situation and needs than anyone else; anyone else will inevitably rely on “general presumptions, which may be altogether wrong, and even if right, are as likely as not to misapplied to individual cases” (98). The truth of the latter claim is most evident when we consider that the primary initiator of paternalistic intervention is the centralized state, which intervenes by necessity on the basis of highly standardized information and thus ignores particularity to some degree. Putting this point together with the previous utilitarian argument, we can see that what Mill is saying is that freedom tends to produce utility for the individual who enjoys it, and in those cases when the individual, on account of his fallibility, fails to use his freedom to maximize his own happiness, his mistakes are a social good, increasing the wisdom and thus the happiness of society. The second part of that argument is expressed eloquently in negative form by Herbert Spencer when he says that “the ultimate effect of shielding men from the effects of folly is to fill the world with fools” (Spencer 354).

Considering his fundamental Happiness Principle as well as the two-part utilitarian antipaternalist argument just mentioned, we must conclude that his voluntary slavery exception to the Harm Principle is without foundation. He argues that an individual should not be permitted to voluntarily submit to a slave master:

His voluntary choice is evidence that what he so chooses is desirable, or at the least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it. But by selling himself for a slave, he abdicates his liberty; he forgoes any future use of it beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. (133)

In other words, voluntary slavery is impermissible because the purpose of liberty is to permit the individual to pursue happiness; using one’s liberty to surrender one’s liberty, and thus the necessary means to happiness, defeats the essentially utilitarian purpose of liberty.

But in light of the claim previously made that liberty, even in failing to secure the happiness of the individual exercising liberty (which it is bound to occur on account of human fallibility), can contribute to the happiness of society, his justification for prohibiting voluntary slavery makes little sense. The voluntary slave sacrifices utility for himself, but in doing so contributes to the wisdom of society, impressing on or reminding his fellow men of the truth that sacrificing liberty is not a prudent means to achieving happiness. The voluntary slave produces utility for all members of society, and the widespread utility generated by his slavery probably far outweighs whatever utility he sacrificed in voluntarily signing away his future freedom.

In fact, an essential part of Mill’s utilitarianism, his belief that the value of happiness is neutral with respect to persons, strongly supports this utilitarian argument in favor of permitting the martyrdom of the voluntary slave for the benefit of society. Mill states:

The happiness which forms the utilitarian standard of what is right in conduct, is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator. (174)

With this in mind, Mill justifies martyrdom in general with an argument very similar to the utilitarian justification for voluntary slave contracts just given: “all honor those who can abnegate to themselves the personal enjoyment of life, when by such renunciation they contribute worthily to increase the amount of happiness in the world” (172).

Showing that Mill’s grounds for defending individual liberty justify slavery is almost a reductio ad absurdum, and seems at the least to decrease the potency of his defense of liberty. So far though, we have only examined the case against voluntary slavery stated in hedonistic utilitarian terms, that is, solely in terms of pleasure and pain. But there is some ambiguity in Mill regarding his approach to utilitarianism, that may allow us to read him as objectivist rather than hedonistic, and to apply this element in Mill to the task of justifying more adequately the voluntary slavery exception. Ideally, we would want to do this without belying his distinct preference for anti-paternalism.

In chapter three of On Liberty, he seems also to make the case for a non-hedonistic utilitarianism. What he calls “individuality” is presented as something intrinsically as well as instrumentally valuable, rather than merely valuable as a means to pleasure. That this idea is present in Mill is suggested by the title of this chapter, according to which individuality is an “element of” and not a means to well-being.

His individuality has two intimately related components. First, possessing individuality means cultivating a unique and well-defined character. A person possessing individuality thus understood, attains “the highest and most harmonious development of his powers into a complete and consistent whole [Mill quoting Humboldt]”– he “makes his desires and impulses his own,” so that they are “the expression of his own nature” (77). Secondly, he defines individuality as the development of distinctly human faculties–“the qualities which are the distinctive endowment of a human being…the human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference” (75). These faculties are only put to use and thus trained and developed, in acting freely, as opposed to acting reflexively according to the dictates of culture or in complying with the coercion of the state. When one does the latter, one is no more than a “sheep,” in the sense that one is nonautonomous and indistinguishable from other individuals in conformist obedience (87).

Putting these two ideas together, we can say that individuality is the cultivation of one’s distinctly human faculties toward the end of perfecting a unique and autonomous self. Mill defends individuality thus defined, partly in instrumental terms. Individuality manifests itself in the aggregate as a diversity of ways of life, which is a utilitarian benefit for reasons already explained. Going into more detail on this point, Mill identifies the spirit of liberty with progress because conditions of individual freedom, especially from cultural pressures to conform, permit the proliferation of eccentric geniuses who make transformative contributions to culture:

There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct, and better taste and sense in human life. (82)

On the other hand, statements like this one seem to suggest that individuality is valuable independently of its utility: “it is not by wearing down into uniformity all that is individual in Pharmakon Journal of Philosophy: 3rd Issue 7 themselves, but by cultivating it and calling it forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation.” The “nobility” and “beauty” of man seem to refer to the inherent value of his individuality. Mill bemoans the fact that popular opinion does not recognize “individual spontaneity” as having any “intrinsic worth” (73). The Harm Principle, which is to say liberty, may be justifiable not just by reference to the Greatest Happiness Principle, but also by reference to what we might call the Greatest Individuality Principle, which would command the maximization of individuality in society.

What if we apply the Individuality Principle to the dilemma of voluntary slavery? The slave surrenders his individuality in that he relinquishes his ability to judge and act for himself, and thus subjects his individual development to the will of his master. But if individuality is the value is taken into account in the utilitarian calculus, the same problem does not arise as with a hedonistic calculus, in which the disutility to the individual caused by his losing his freedom is outweighed by the utility produced for others who learn from his error. The determination by society regarding whether slavery brings happiness to the voluntary slave requires the observation of actual slavery by society. By contrast, that slavery violates individuality (understood as the combination of autonomy and uniqueness) can be known a priori, because slavery by its very nature involves the exercise of complete sovereignty by one individual over the actions of another, and thus the violation of autonomy, and by association, individuality. Hence, social learning from the voluntary slave’s folly provides no utilitarian benefit in terms of individuality.

An objectivist utilitarianism that seeks to maximize individuality in society provides a stronger defense of liberal freedom than hedonistic utilitarianism. This is so because the former avoids the reductio ad absurdum of permitting slavery in the name of freedom. Ultimately, however, both versions of utilitarianism provide compelling arguments for liberal freedom, in terms of two distinct and intuitively valuable ends, happiness and individuality.

Mill, John Stuart. On Liberty and Utilitarianism. New York: Bantam Dell, 1993.

Spencer, Herbert. Essays: Scientific, Political, and Speculative, Volume 3. New York: D. Appleton and Company, 1904.