by Tim Cushing
Techdirt. / 2017-05-30 09:29
It’s the normal state of things, but familiarity makes it no less enjoyable to observe: power changes hands in the White House and suddenly everything the previous president authorized with the support of his followers becomes a dangerous weapon in the hands of the new guy. The only surprising thing is the cycle never ends.
As has been noted here, longtime fans of government surveillance under Obama were suddenly deeply concerned about Trump’s command of the nation’s spycraft. Then there were all those Republicans who helped assemble the surveillance machinery in the wake of the 9/11 attacks, expressing their displeasure with the FBI, NSA, and others using powers they’d granted them. Domestic surveillance is fine, they argued. Years later, it’s NIMBY but for recently-elected presidents.
But there’s a darker current running below the irony and schadenfreude. Both sides applaud possible surveillance abuses when they harm their political enemies, but act like these are Espionage Act violations when the target is one of their own. The ultimate problem isn’t the right/left, Republican/Democrat partisan divide and the hypocrisy that goes with it. The problem is the abuse/misuse of surveillance powers for political gamesmanship.
The FBI didn’t go rogue after Trump canned Director James Comey in the most duplicitous, chickenshit way ever. It had been coloring outside of the lines for months, if not years, with Comey making the most of his many grandstands to push his personal agenda at the expense of the agency’s. He routinely made statements others in the DOJ have refused to back up and broke protocol (twice) by openly discussing investigations that resulted in no criminal charges.
The Trump presidency has been notable for the number of leaks it has prompted, which seem to spring from nearly every agency with access to collected intelligence. The reaction to the leaks by the Trump Administration has been awful in pretty much every way, and the looming threat of prosecution by Jeff Sessions’ god-guns-and-government DOJ hasn’t done much to slow the bleeding.
What’s being overlooked is the danger this autonomy poses. While some would love to see every presidential administration undermined by intelligence leaks [raises hand], this isn’t always a good thing. Nor is it something that should be cheered on without reservation when it’s the other side sustaining damage. Agencies with access to domestic communications (and there are a lot of them, thanks to loosened information-sharing restrictions) have their own agendas to push, too, and they’re rarely directly aligned with either party.
As Julian Sanchez notes, partisans need to stop cheering when things go their way and crying foul when they don’t. The problem goes far beyond politics and stabs at the heart of rights and protections the government is supposed to be ensuring for everyone.
If we take it at face value (leaving aside whether that’s proper), the Flynn intercept reveals a president-elect apparently worried that his foreign policy would be undermined by his own government’s intelligence agencies. It would be easier to dismiss that fear as yet another fit of Trumpian paranoia if it didn’t seem like we were learning about that conversation from wiretaps.
Progressives who’ve recently learned to stop worrying and love the surveillance state should think hard about the precedent such leaks set — and the implicit message they send to political actors — even if any particular instance can be justified as serving the public interest. The leaks may not be, as conservative media would have it, the only real scandal, but nobody should be too enthusiastic about the prospect of living in a country where officials who antagonize spy agencies find their telephone conversations quoted in news headlines.
Speaking personally, as much as I’d like to see every president supportive of constant surveillance and law enforcement mission creep be the victim of an apparatus they think they control, I also want overreaching agencies to be subjected to the same involuntary transparency and accountability. But the power has tipped too far in one direction, thanks largely to the alienating acts of the current administration. The IC is not-so-subtly sending out a warning to meddling politicians and enemies of their desires. In an effort to undermine an administration they don’t like, unnamed intelligence community operatives are undermining the entire system. It won’t stop here. It will only get worse.
The response to the leaks only aggravates the issue. A desire to punish leakers for exposing the administration’s misdeeds will result in harsher policies and punishments for whistleblowers, who cannot help but be caught up in the purge the DOJ is threatening. The agencies themselves have already put themselves in the position to nullify their oversight through the existential threat of leaked communications. A hunt for whistleblowers and leakers (often the same thing) will only increase the agencies’ autonomy, making them even more dangerous in the future.