Transparency Can Be Bad for Liberty

In October 2002, one of the worst terror attacks of the post-9/11 era killed 202 people and wounded 240 more at two nightclubs on the Indonesian island of Bali. Eighty-eight Australians were killed, making up the largest national group among the victims.

Australia understandably wanted the perpetrators brought to justice. Yet persistent questions lingered regarding whether the Indonesian government was fully committed to the investigation. President Megawati Sukarnoputri dithered, eager to placate all sides: angry Australians and Americans, yes, but also powerful local Islamist factions that had been cultivated by her authoritarian predecessor, Mohammad Suharto.

In recent months, the press has reported that documents released by Edward Snowden, the former U.S. intelligence contractor, show that Australia’s intelligence agency had deeply penetrated Indonesian communications and data networks. It was already known that Australia had intercepted phone calls between senior Indonesian politicians. Now it seems that Australia was, with technical assistance from the U.S., monitoring just about everything going on in Indonesia.

Is it shocking that the Australian government wished to know as much as possible about its poor, populous, and unstable neighbor? Since achieving independence at the end of World War II, Indonesia has experienced two convulsive revolutions: one in the mid-1960s, the other in the late ’90s. The country has been bloodied by violent separatist and radical-extremist movements. Indonesian terrorists of various stripes have repeatedly targeted foreigners, especially Australians. For instance, a car bomb was detonated outside the Australian Embassy in Jakarta in September 2004, killing nine and wounding 150. In 2009, three Australians were killed in coordinated hotel bombings in Jakarta. Throughout the rampage—which continues today—Australian and U.S. security forces have often had reason to question both the commitment and the capability of their Indonesian counterparts.

Yet, inescapably, Australia and the United States have had to rely on those same Indonesian counterparts for help. Only the Indonesians can follow suspects; only the Indonesians can question friends and relatives. Except in a few spectacular cases—such as the arrest of one Bali bomber by Pakistani authorities in Abbottabad in 2011—the Indonesians are the ones who must carry out arrests, conduct trials, and impose punishments. What kind of job were the Indonesians doing? Were they following every clue? Were they tracking only low-level participants, while protecting more-senior and better-connected extremist figures?

Answering such questions is why states maintain intelligence agencies. Awkwardly, however, the very same imperatives that drive states to collect information also require them to deny doing so. These denials matter even when they are not believed. The Indonesian authorities may well have suspected that the Australians were surveilling their networks. They may have accepted that reality—or even tacitly welcomed it, since it improved their own counterterrorism efforts and reassured Australia and the U.S. But if acknowledged, the surveillance would have triggered negative reactions among nationalist Indonesians, constraining the Indonesian government’s cooperation with the Western powers. Which is exactly what has happened, thanks to Edward Snowden.

We all, or almost all, want the benefits of improved national security. From 1993 to 2001, the United States and its friends were hit again and again by terrorist attacks of increasing sophistication: from the first World Trade Center attack, to the Khobar Towers bombing in Saudi Arabia, to the embassy bombings in East Africa, to the bombing of the USS Cole, to the attacks of 9/11. Since 2001, terrorism has hardly ceased. But terrorists have experienced ever greater difficulty reaching into the U.S. and other advanced countries. In the words of a 2013 report from Europol, the European Union’s law-enforcement agency, the terrorist threat on the Continent “continues to evolve from one posed by structured groups and networks to smaller EU-based groups and solo terrorists.” In Europe as in the United States, terrorists who talk to each other have become exceedingly vulnerable. And a solo terrorist is generally a much less effective terrorist.

As we have become safer, we have, in that very human way, increasingly begrudged the means of our safety. The intellectual and political pendulum has swung against national-security agencies—indeed, against the basic requirements of an effective executive branch, which are the same today as when Alexander Hamilton outlined them in “Federalist No. 70” in 1788: “decision, activity, secrecy, and dispatch.” Self-described reformers insist that the present-day U.S. government suffers from too much of these four elements. Since the 1970s, they have achieved great success in shifting government to be less decisive, less active, less secretive, and less able to move quickly—and not only in the domain of national security.

But the implications for national security are especially disturbing. In a world where danger comes as often from substate actors as from competing national governments, democratic governments need more and wider sources of information than before. Of course, the attainment of that information must be governed by law. If the National Security Agency breaks laws, corrective action is called for. But it’s not illegal, according to the most relevant Supreme Court precedent, for U.S. intelligence agencies to collect information on who connects to whom, provided they do not read the contents of messages without securing a warrant first. It’s certainly not illegal for agencies to intercept—and read—messages transmitted outside the United States. Herbert Hoover’s Secretary of State Henry Stimson famously closed the Cipher Bureau on the grounds that “gentlemen do not read other gentlemen’s mail.” Yet as Franklin D. Roosevelt’s secretary of war, Stimson would read decrypted communications with avidity.

We live in a world of predators. A democratic state too gentlemanly to learn all it can about potential threats is a state that has betrayed its most-fundamental responsibilities to the people it exists to safeguard. That does not mean states cannot form relationships of trust and cooperation. They can and do—and ironically enough, intelligence-gathering presents an outstanding example of such cooperation: the intimate data-pooling among the United States, the United Kingdom, Canada, Australia, and New Zealand. That cooperation exists as a result of agreements among sovereign states that are responsible to their respective national electorates.

Critics of intelligence-gathering wish to trade this real world of real rights and real obligations for a nebulous alternative, in which everybody has long lists of unspecific rights (where they come from, nobody can say) and in which national governments are restrained by equally murky obligations to everyone on Earth except the people who elected them. In December 2013, an open letter from Edward Snowden to the Brazilian people appeared in a Brazilian newspaper. A set of documents he had released revealed that the United States was collecting data inside Brazil. Snowden denounced this practice as an invasion of Brazilians’ rights:

The NSA and other spying agencies tell us that for our own ‘safety’—for Dilma’s ‘safety,’ for Petrobras’ ‘safety’—they have revoked our right to privacy and broken into our lives. And they did it without asking the public in any country, even their own … Our rights cannot be limited by a secret organization, and American officials should never decide the freedoms of Brazilian citizens.

What’s not spelled out is how exactly the government of the United States acquired this obligation to the people of Brazil—and what reciprocal obligations the Brazilians have to the government of the United States. A person under the jurisdiction of the United States benefits from the protections of the Fourth Amendment. That person is also bound to pay taxes to the United States, to obey its laws, and to bear arms in its defense if called upon to do so. Snowden (or whoever writes for him) envisions a strictly one-way flow: Brazilians would demand that a government to which they owe no loyalty nonetheless treat them exactly as its does its own people, as part of an undifferentiated global “we” of responsibility-free rights-bearers.

Yet in such a world, there could be no rights. Rights don’t enforce themselves. Rights are useful only to the extent that they are upheld by effective governments. If I cannot call on a sheriff to enforce the law, my right to occupy my house is only as good as my own individual power to repel and eject trespassers—which is to say, it’s no right at all.

This is the truly arresting idea embedded in Alexander Hamilton’s defense of executive power. Energetic and effective government is not the enemy of rights. In a world of predators, energetic and effective government is the vindicator of rights. Freedom unprotected by power is no freedom at all. Power unguided by information is no power at all. And the information most needed for national defense is not obtained by asking nicely for it.