One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty

April 14, 2011

Has the long, uneven crawl towards liberty that began with the Magna Carta come to an end? Much post-9/11 "everything has changed" writing claims that it has. This results either from the dirty hands activity of macho realists who would destroy what is unique about democracy in order to save it, or from the clean hands inactivity of civil libertarian idealists who fail to see that constitutions are not intended to be suicide pacts. Can a democracy successfully fight with one hand tied behind its back?

Walking something of an intermediate path, law professor Simon Chesterman argues that things have indeed changed in what he terms "a post-privacy world" - an undeveloped and I think empirically unsupportable term. But apart from the many types of privacy and the multiple dimensions by which change can be measured, it is clear that the borders between crime and national security, the public and the private, and domestic and foreign intelligence are changing, as are the information-gathering powers of governments, organisations and individuals.

Chesterman emphasises government changes and argues that they result from stateless terrorists, new technologies and the emergence of a culture supporting increased government intrusion. He analyses this with clarity and concision - in spite of a Time magazine-speak book title and a subtitle that, in promising a free lunch, radically undercuts the book's central message. That message is: appreciation of contextual differences, empirical enquiry and the trade-offs involved in giving government (and its private sector deputies) secret powers and strong tools. But you can't judge a book by its cover.

The author, a specialist in international law and globalisation, adeptly pulls key ideas from a morass of national security verbiage, while offering compelling stories and facts. These vary from the surrealistic to the horrific, the deceptive to the incredulous, and the anomalous to the surprising. Consider: the commodification of spying as entertainment in the case of a leading KGB agent and his US counterpart who now run espionage tours for tourists in Washington DC; the cross-border mistaken identity and blurred policing and intelligence lines that led to the kidnapping and torture of Canadian citizen Maher Arar; the hidden use of private contractors for rendition and coercive interrogations in order to create plausible deniability; the fact that over the past four decades more Americans have died as a result of lightning strikes and allergies to peanut butter than from terrorism.

The scale of national security intelligence activities (which, in the US, runs to 16 agencies, a budget of more than $75 billion, 200,000 employees and extensive private contracting) swathed in secrecy, classification and misinformation and an insulated culture of incipient crisis distrustful of outsiders, presents monumental challenges to public accountability.

Chesterman's book provides a selective field guide to some of the best that has been said about intelligence and national security strained through the author's experience and legal knowledge. It may be too detailed for general readers without a strong interest in the topic. It is, however, a fine teaching device and is, as book blurbs say, "highly recommended".

The book brings greater depth and familiarity with theory and research than most journalistic efforts and more disciplinary breadth and human-interest material than most legal analyses. As a peripatetic academic who has studied and worked in Australia, the UK and the US, Chesterman is particularly informative in comparing anglophone democracies and in noting the changes related to globalisation, the UN and policing across national borders.

He is good at identifying the many dimensions of intelligence and related tensions for public policy. Among the most important are: separating intelligence collection, analysis, sharing and use (central here is the need to consider the morality of means as well as ends); deciding whether to emphasise preventing fires or putting them out and whether to prohibit or try to regulate dangerous tactics; drawing distinctions between domestic and international and citizen and non-citizen surveillance; appreciating that distinct forms of accountability are needed such as control, oversight and review at different stages; and confronting, rather than denying, the ironies resulting from the necessity and potential costs of political control, secrecy, outsourcing and formally legitimating grey (and darker) tactics with written policies or laws.

As US president James Madison noted in the Federalist Papers, there is an eternal tension between protecting the public from itself (not to mention from other countries' publics) and from the government itself. No gimmicky marketing claim (such as this book offers) about "a new social contract" that is neither new, nor a contract, can overcome that tension. We can never solve what in law enforcement circles is called "the Dirty Harry problem" of means and ends. However, society is best served by awareness of the problems and filtering the issues through principles of legality, public accountability, proportionality, and context and consequence sensitivity that this book expresses so well.

One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty

By Simon Chesterman. Oxford University Press. 320pp, £20.00. ISBN 9780199580378. Published 24 February 2011

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