Tuesday, June 25, 2013

Ruminations 50: Edward Snowden and Polycentric Global Governance Orders Beyond the State

The last several weeks have brought much attention to issues of the cyber warfare that governments have been waging  amongst themselves and with a in increasingly larger set of non state actors--individuals and organizations, whose interests the state deems threatening it its interests. 

(Pix ("Edward Snowden and the NSA files – timeline," The Guardian, June 23, 2013).)

What started as a concerted effort by Western States to discredit Chinese cyber espionage activities against public and private targets ("China's Cyber Hacking: Getting Ugly," The Economist, Feb. 23, 2013; Shane Harris, "China's Cyber Militia", The National Journal, May 31, 2008, updated May 29, 2013; David E. Sanger, David Barboza and Nicole Perlroth, "Chinese Army Unit Is Seen as Tied to Hacking Against U.S.," The New York Times, Feb. 18, 2013; Michael Riley & John Walcott, "China-Based Hacking of 760 Companies Shows Cyber Cold War,"  Bloomberg, Dec. 14, 2011) took an unexpected turn at the beginning of June 2013 when Edward Snowden fled to Hong Kong after revelations of massive United States programs of cyber monitoring by the US National Security Agency of activities of public and private institutions and individuals through its Prism program, among others (Glenn Greenwald, Ewen MacAskill and Laura Poitras, "Edward Snowden: the whistleblower behind the NSA surveillance revelations," The Guardian, June 9, 2013; "Edward Snowden and the NSA files – timeline," The Guardian, June 23, 2013).

Most analyses tend to fall within the ancient framework of state based international relations and law (e.g., Matthew Belvedere, "McCain: Russia's Denials on Snowden Like Cold War," CNBC, 25 June 2013; Rob Quinn, "US, China, Russia Brawl Over Snowden," Newser, 25 June 2013; Max Boot, "Snowden's Quest Isn't About Civil Liberties," Commentary, 12 June 2013).  Lost in the two dimensional and anachronistic traditional analysis is the role that may have been by non-state orders in developing a normative framework within which Snowden made his decision to leak, and the support network that was critical to the success both of the disclosures and to his avoidance, at least for the moment, of capture.  This essay suggests that the real lesson of the Snowden affair has little to do with leaking the Prism program, something that people with no access to official documents could have easily surmised in any case.  The real revelation of the Snowden affair is the power and scope of non-state actors on the international stage.  

 There are a number of aspects to this analysis that are worth considering.

1.  The role of states in the Snowden affair has been passive at best and reactive at worst. Notwithstanding claims by at least one member of the U.S. House of Representatives --"Rep. Ileana Ros-Lehtinen, R-Fla., said Assange is only able to help Snowden because of support he's getting from anti-U.S. nations like Ecuador, "where press freedoms are trampled upon." (Oren Doirell, "WikiLeaks' Assange calling the shots on Snowden", USA Today, 25 June 2013). --States have not been on control of any facet fo this affair and have acted, when they have chosen, because of circumstances, for reasons fo opportunism or revenge.  Among themselves, states have continued to play the game of equals, and the diuscussion has focused on the consequences for relationships between the United States, Russia and China, as a consequences of their actions in facilitationg Mr. Snowden's movement.  ("Snowden healthy and safe, says Assange," Al Jazeera, 25 June 2013). But they do not control the course of the situation as it evolves. For example, The Hong Kong authorities were presented with the issue of Mr. Snowden's fate only after those managing this process chose Hong Kong as the site to start the public revelations.  (Keith Bradsher, "Hasty Exit Started With Pizza Inside a Hong Kong Hideout," The New York Times, 24 June 2013). "Beijing, meanwhile, says it had nothing to do with allowing the former National Security Agency contractor to fly to Russia on Sunday. But analysts believe the move was orchestrated by China to avoid a prolonged diplomatic tussle with the U.S. over his extradition." (Kelvin Chan, "Edward Snowden's China Exit Reveals Beijing's Anger Over U.S. Spying,"Huffington Post 24 June 2013).  Kristinn "Hrafnsson [Wikileaks spokesperson and Icelandic journalist] stressed that WikiLeaks received no help from Russia or China in facilitating Snowden’s escape from Hong Kong. “Julian said this morning that there was no prior knowledge by the Russian authorities that Snowden was arriving there.” Assange reveals details of 'Snowden Op', slams US 'war on whistleblowers', RT 25 June 2013 (other officials dispute this account).  In the case of China and Russia, as well, international law was used to both facilitate the operations of non-state actors moving Mr. Snowden, and resisting U.S. pressure for his return to the U.S. (Kathy Lally and Karen DeYoung, "Putin: Snowden still at airport, won’t be extradited," The Washington Post, 25 June 2013).

2.  The active force in this affair has been one and more likely a coordinated group of non-state actors, well organized and committed to the advancement of their normative programs.   "Australian native and WikiLeaks founder Julian Assange has managed to orchestrate the country-hopping flight of a accused U.S. spy despite being holed up in the Ecuadorean Embassy in London, surrounded by British bobbies under orders to extradite him to Sweden for questioning on rape allegations." (Oren Doirell, "WikiLeaks' Assange calling the shots on Snowden", USA Today, 25 June 2013).A Wikileaks representative, Sara Harrison, has been traveling with Mr. Snowden.  ("Snowden healthy and safe, says Assange," Al Jazeera, 25 June 2013).  "WikiLeaks played a major role in helping Snowden evade detection once he left the United States. According to WikiLeaks founder Julian Assange, the organization's legal team helped draft Snowden's asylum applications to Iceland, Ecuador, and "possibly to other countries," although on a conference call Monday, Assange wouldn't say which." (Brian Fung, "Edward Snowden Realizes He Can't Live Without WikiLeaks," National Journal, 24 June 2013).  These organization serve as node points for connections among a global group of individuals and other organizations that act together when their objectives can be harmonized.  Keith Bradsher, "Hasty Exit Started With Pizza Inside a Hong Kong Hideout," The New York Times, 24 June 2013). Non-state organization now have enough power to begin to manage conduct that were once the sole reserve of states (or the largest institutional religions).

3.  Media enterprises, at least in the West, has begun to develop an autonomy from the states in which they may be based.  The largest media enterprises are increasingly showing aspects of transnational allegiances that tend to reduce national allegiance to secondary status.  As a consequence, transnational values and objectives may take precedence over the more narrow national interests of the states of media origin or operation.   There is a hint of this in the conduct of the Guardian in the Snowden Affair--from its initial involvement in orchestrating and reporting Mr. Snowden's disclosures (Glenn Greenwald, Ewen MacAskill and Laura Poitras, "Edward Snowden: the whistleblower behind the NSA surveillance revelations," The Guardian, June 9, 2013) to its role in protecting the hardware ion which much of the as yet undisclosed materials are contained. Yet the Guardian should not be considered unique in this respect. "When an ABC News reporter asked if Snowden has maintained custody of the laptops, Assange said, "Mr. Snowden's material has been secured by journalistic organizations prior to travel." Assuming he isn't bluffing, Assange could have been referring to the Guardian—which published Snowden's original bombshell, and has been in contact with him in the weeks that followed—or the Washington Post, the South China Morning Post or another as-of-yet unknown outlet." (Emma Roller, Did Edward Snowden Hand Over His Laptops to the Guardian or Another Media Outlet?, The Slatest, 24 June 2013).  Media enterprises had been moving in this direction in the context of their participation in enforcing transnational norms of human rights against global business enterprises (Backer, Larry Catá, Multinational Corporations as Objects and Sources of Transnational Regulation. ILSA Journal of International & Comparative Law, Vol. 14, No. 2, 2008).  They appear now to be extending that pattern of behavior--their legitimating obligation to avoid complicity in violations of international norms to which they feel bound over those of the interests of states--to the conduct of states in the furtherance of their interests in competition with other states.  "Edward Snowden may not have chosen to go the route of fellow Espionage Act indictee Bradley Manning by releasing sensitive National Security Agency documents through WikiLeaks. Part of that, he said, was because he wanted every single page vetted—not everything was to be revealed at once, and he trusted The Guardian's Glenn Greenwald to do it." (Brian Fung, "Edward Snowden Realizes He Can't Live Without WikiLeaks," National Journal, 24 June 2013).

4.  States are no longer the most potent generators of the normative frameworks within which individuals develop and apply moral and ethical structures, and their obligations as citizens, to guide their conduct; nor are states no longer the highest object of such moral or ethical systems.  Even as states continue to develop their national structures for appropriate conduct, and the obligations of citizenship, they are increasingly losing the monopoly over these structures to both transnational public institutions and with growing force, non-state or public global organizations (beyond institutional religion).  This explains, in part, the transnationalism (or the supra-nationalism) of media enterprises in working with Mr. Snowden and his allies.  But it serves more powerfully to explain the reasons why Mr. Snowden could first develop and then with substantial confidence in its legitimacy, interpret conduct norms as requiring the sort of disclosures he made.  Though it may have adversely affected his relationship to the nation of his citizenship, it affirmed, in his mind, his overarching transnational obligations.  ""In the Obama administration's attempt to crush these young whistle-blowers with espionage charges, the U.S. government is taking on a generation, a young generation of people who find the mass violation of the rights of privacy and open process unacceptable," Assange said. "In taking on the generation, the Obama administration can only lose.""  (Emma Roller, Did Edward Snowden Hand Over His Laptops to the Guardian or Another Media Outlet?, The Slatest, 24 June 2013). Indeed, individuals may owe greater allegiance to the normative structures of the transnational societies to which they belong than to the state in which they reside and from which they acquire more narrow political rights.  (Lana Lam, "Snowden sought Booz Allen job to gather evidence on NSA surveillance," South China Morning Post, 25 June 2013 ("Edward Snowden secured a job with a US government contractor for one reason alone - to obtain evidence of Washington's cyberspying networks, the South China Morning Post can reveal. For the first time, Snowden has admitted he sought a position at Booz Allen Hamilton so he could collect proof about the US National Security Agency's secret surveillance programmes ahead of planned leaks to the media.")). In this case the issue might have been the illegitimacy of spying (Peter Weber, "Why Edward Snowden is spilling U.S. secrets to China," The Week, June 13, 2013).  But the same applies to the United States.  Consider this most interesting defense of Mr. Snowden by Senator Rand Paul of the United States:  "
“Mr. Snowden hasn’t lied to anyone,” Paul said. “He did break his oath of office, but part of his oath of office is to the Constitution, and he believes that, when James Clapper came in March, our National Director of Intelligence came and lied, that he was simply coming forward and telling the truth that your government was lying.”

Crowley disputed this point. “I believe that Director Clapper has said that, when he said the U.S. didn’t spy on Americans or gather information wittingly, that he was talking about the PRISM program.”

Paul objected. “He admitted that he lied, and he said he was saying ‘the least of untruthful things.’ So he did admit that he lied.” (Evan McMurry, "Rand Paul To Snowden: Don’t ‘Cozy Up’ To Russia, China, ‘History’ Will Judge Him ‘Advocate Of Privacy’", Media 23 June 2013).
Mr. Snowden in a sense embodies a basic contradiction of American political values, one that tends to be sorted out only well after the fact. But one of those values is also tinged with what another age might have called "natural law" overtones, one that Mr. Snowden might more easily understand as reflecting global  values to which all states and individuals are subject and with respect to which all individuals and entities have an obligation to uphold, even against the national interests of the states from which they derive their political rights.

5.  The autonomy of these new allegiances, and the normative framework for ordering conduct that these new transnational organisms evidence, represent both a boon and a great threat to states. A recent article on the Chinese reaction to Mr. Snowden highlights both.  Mr. Snowden's revelations both strengthened the Chinese case for a strong firewall to protect itself against the destabilizing interventions of foreign states, and threatened the stability of that state by extolling the virtues of whistleblowing even against the most protected national interests if they violate higher order norms, especially potent since China is no less enthusiastic about domestic and foreign monitoring than the U.S. (Evan Osnos, Why China Let Snowden Go, The New Yorker, June 24, 2013).  But the real problem for states is that they no longer control the development or application of those norms that can be both helpful and hurtful.  They come from outside the state and apply to state like they would to other organizations.  This, in the end, poses the greatest threat to the traditional state system on which the current international order is based. When combined with the threat of non-governmental combatants, like al-Qaeda, which adheres its its own normative world order in its interactions with people and states, this represents a double threat to the state and the global order in which states play a substantial role. Yet in many ways, these are creatures of the state system's own creation--the combination of political internationalism and legalism represented by the United Nations system, combined with the privatising governance frameworks of economic globalization create the framework within which governance organisms beyond the state will inevitably grow and take their place alongside states as critically powerful actors, at least within the borders of their organizational logic. (Backer, Larry Catá, "Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order." University of California, Berkeley La Raza Law Journal, Vol. 17, No. 1, 2006).

6.  Notions of spying, then, become both more complicated and fairly irrelevant in their classical form. (e.g., "USG Talking Heads Spinning Edward Snowden as Spy for China," Economic Policy Journal, June 10, 2013).  Mr. Snowden was not "turned" by any state.  States, indeed, are likely less relevant to Mr. Snowden than they have been for political actors in more than a century.  Mr. Snowden's loyalties were transnational--to the community whose values he found legitimate, and binding on states. He represents a new type of actor, one who rejects the paramount superiority of the state as the ultimate vessel of political, moral or governance power.  He may well be representative of a new form of global engagement in which behavior rule systems have fractured and multiplied--each applying simultaneously to individuals, states and enterprises.  Mr. Snowden suggests the power of this new form of autonomy, one that was presaged not so much by Wikileaks as by organizations like Anonymous, of which I have written before (e.g., Democracy Part XXIII: The Transfirguration of Anonymous--Mass Mobilization and its Organizational Conundrums, Law at the End of the Day May 14, 2011; Taking Anonymous Seriously: The State Strikes Back, Law at the End of the Day, Jan. 28, 2011;  "Anonymous": Organizing Collective Action and Coercive Power Beyond the State, Law at the End of the Day, Jan. 4, 2011).  Indeed, quite overlooked in the rush to convert the Snowden story into one of old fashioned battles between states, are the parallel events that took place in 2011 and 2012--when Mr. Snowden was moving toward the conclusion of his journey--the massive program of surveillance and arrests of members of Anonymous in the West and the strengthening of internet control in Russia and China.  (Hilary Whiteman, "Interpol arrests suspected 'Anonymous' hackers," CNN, Feb. 29, 2012; "Top members of hacking group Anonymous arrested after Leader 'betrays them and works with FBI for six months'", Daily Mail March 6, 2012; Jim Forsyth, "A leader of hacker group Anonymous arrested in Texas," Reuters, Sept. 13, 2012; Elinor Mills, "FBI Arrests 16 in Anonymous hacking investigation,"CNet, July 19, 2011).  Anonymous has come out publicly in support of Mr. Snowden, on transnational principles as they understand them.  (Angel Clark, "Anonymous demands a full pardon for NSA whistleblower Snowden #OPSnowdenJustice", Examiner June 12, 2013). They have launched Anonymous - Operation Support Edward Snowden #OpSupportEdwardSnowden.Again, this suggests both the strength and the organizational integrity of non-state organizations whose values transcend those of states and which are asserting greater power to appeal to individuals who feel less bound my territorially based loyalties and the rule systems they impose.

7.  What the Snowden affair may suggest, then, is a vivid example of the lived realities of the emerging system of polycentric governance that is rapidly becoming an important factor in relations between public and private institutional actors and between individuals and these actors in the global governance spaces which now assert power over all of these actors.  States are no longer as sure of their ability to control allegiance within their borders; but competing allegiances are not to other states, but to supra national norm systems grounded in emerging public or private international consensus among increasingly well organized non-state actors, or within the more traditional structures of organized religion.   (Larry Catá Backer, Scenes From the Streets of Barcelona: Direct Democracy, Disenchantment and the Globalization of Resistance, Law at the End of the Day, June 21, 2011).  The result is clear--we have entered an age in which the well ordered state based system of global order is giving way to a more polycentric governance universe, one in which order will be harder to come by.  The result will pit governance systems against each other, or with each other, as they seek to apply simultaneously to individuals and entities, each sources form distinctly different communities of actors. Polycentricity itself suggests a certain measure of anarchy--of ordering without center, that is a global system not without order or law, but  ἀν (without)  ἀρχός (rulers).  And in a sense, in a world order without rulers, one in which states, enterprises, individuals and religions will participate and compete, the very shape of democracy and democratic engagement will both lose its 18th century moorings and transform itself into something that by the end of this century will be unrecognizable to those of us here today, one that will no longer necessarily be bounded by territorial borders, or singular allegiance to one set of behavior managing rules. 



Brian A said...

Professor Backer,

Nice article! I'm interested to hear your opinion on one thing - if Snowden had the capability to so readily gather top secret information from the U.S. government, why would he come forward if it wasn't for transparency to American citizens? Why not become a Robert Hanssen if he were to be charged with espionage, regardless?

Larry Catá Backer said...

@Brian: good question--because I do not believe he was thinking in terms of state based politics that would require a defection to another state. He was not interested in betraying the United States or acting in the service of another state; rather he was seeking to serve the US by exposing what he viewed as its betrayal by people serving at the highest levels of the state. At the same time he made these judgments and could think he was acting legitimately because he relied, in effect, on what he might have understood as international standards for conduct that bind the US (and every other state). That is why the spying charge doesn't fit all that well. He doesn't appear to have been intersted in serving another state--just this one in the context of higher principles of conduct.

Brian said...

Do you think he will defect to another state (I.e. Russia) if they allow him to stay there freely without extradition, contingent on the basis he provides specific details on information he may know regarding US intelligence gathering on Russia? At that point I would assume an espionage charge would be correct, but not being a person in the field of law - what charge could the US realistically charge him with as long as did not chose to defect for personal security reasons?

Larry Catá Backer said...

@Brian: yes, at that point he would be selling secrets for personal gain, at least plausibly so. But I was trying to make a different point here: that not only is deterritorialization occurring in the strictest legal and political sense, but even more profoundly, in a cultural and a moral sense. In that sense and at this point it is he would indeed appear to be selling state secrets for gain, but it is not clear that he took them in the first place for that purpose.

Dave Dambreville said...

Great Article!

Pini Miretski said...

Excellent piece!!! Very interesting analysis and an insightful punch line!