Sunday, February 08, 2009

Ruminations 8: Surveillance, Praetorianism and the End of the public-Private Divide

(Pix (c) Larry Catá Backer)

This is another in what I hope to be a month long series of quasi-aphoristic (ἀφορισμός) essays, meant to provoke thought rather than explain it. The hope is that, built up on each other, the series will provide a matrix of thoughts that together might lead the reader in new directions. Though each can be read independently of the others, they are intended to be read together and against each other.
A new age is always presaged by the recombining of previously disparate elements of the preceding age, and all to the good.


Tacitus and Seutonius remind us of the the way in which working toward the good can have significant effects on the effective forms of power within a state. Lucius Aelius Sejanus, commander of the imperial guard, is well remembered in the West as the author of both a useful method for efficient protection of the imperial household and the governing of empire, and in the same form, of a great and terrible instrument that then shaped (and corrupted) the imperial machinery. And its basis was something as simple as an administrative reorganization.
The command of the Guard had hitherto been of slight importance. Sejanus enhanced it by concentrating the Guard battalions, scattered about Rome, in one camp. Orders could reach them simultaneously, and their visible numbers and strength would increase their self confidence and intimidate the population. (Publius Cornelius Tacitus, The Annuals of Imperial Rome 153 (Michael Grant, trans., Baltimore, MD: Penguin Books, 1956)(before A.D. 117)).
Sejanus turned efficiency into a threat to the imperial person. Though he failed, the manner of the proclamation of the Emperor Claudius just a few years later revealed the shape of things to come. On the assassination of the Emperor Caligula by the Guards, Claudius
"slipped away in alarm to a nearby balcony, where he hid trembling behind the door curtains. A Guardsman, wandering vaguely through the palace, noticed a pair of feet beneatht he curtain, pulled their owner out for identification and recognized him. Claudius dropped on the floor and clasped the soldier's knees, but found himself proclaimed Emperor." (Gaius Seutonius Tranqillus, The Twelve Caesars 186-187 (Robert Graves, trans., Hammonsworth, Eng: Penguin Books, 1957)(before A.D. 140)).
Thus, just as the Imperial government kept to the forms of the Roman Republic ("It was typical of Tiberius to use antique terms to veil new sorts of villainy." Tacitus, supra., at 162), so the Guards kept to the forms of Imperial succession. Necessary change necessarily points to consequences contemporaneously implanted but conceptually realized only long after--for good and ill.

Today, among the great elements that are recombining are the traditional distinctions between monitoring and rule making, between domestic and foreign power, and between the public and private spheres. War is the mother of change and the lubricant of its effectuaion. Its messenger is a new prince seeking a modest reorganization, a recognition through implementation of a reality already upon the state. "President Obama plans to order a sweeping overhaul of the National Security Council, expanding its membership and increasing its authority to set strategy across a wide spectrum of international and domestic issues." Karen deYoung, Obama's NSC Will Get New Power, The Washington Post, Feb. 8, 2009. At the center of this reorganization is President Obama's "national security adviser James L. Jones, who described the changes in an interview. 'The world that we live in has changed so dramatically in this decade that organizations that were created to meet a certain set of criteria no longer are terribly useful,' he said." Id.

In the name of efficiency and flexibility, two noble and necessary goals in the current domestic and international governance climate, a new consolidated agency will be created. All of the necessary actors, currently scattered throughout the state apparatus will be concentrated and re-concentrated to meet new and shifting challenges. A new protean bureaucracy, perhaps meant to incorporate elements of the organizational framework of the most successful enemy organizations, from Al-Qaeda to other known institutionalized threats, will be deployed against those threats on their own institutional terms. (For an understanding of that structure among American elites, see, Backgrounder, Al-Qaeda, Council on Foreign Relations (updated April 2008).
"The new structure, to be outlined in a presidential directive and a detailed implementation document by Jones, will expand the NSC's reach far beyond the range of traditional foreign policy issues and turn it into a much more elastic body, with Cabinet and departmental seats at the table -- historically occupied only by the secretaries of defense and state -- determined on an issue-by-issue basis." Karen deYoung, Obama's NSC Will Get New Power,supra.
This new entity will be a consumer of bureaucracy of sorts. And its principal course includes the brushing aside of the old distinctions between domestic and foreign activities. It is clear that with this new organization, the distinctions between national security activities abroad and within the national territory will not count for much.
"New NSC directorates will deal with such department-spanning 21st-century issues as cybersecurity, energy, climate change, nation-building and infrastructure. Many of the functions of the Homeland Security Council, established as a separate White House entity by President Bush after the terrorist attacks of Sept. 11, 2001, may be subsumed into the expanded NSC, although it is still undetermined whether elements of the HSC will remain as a separate body within the White House." Id.
There is irony here. Much of the criticism of the former administration centered on the direct attack on the foreign-domestic distinction, one carefully crafted in the aftermath of the excesses of Presidential administrations through to the Nixon Administration, and memorialized in a largish bouquet of laws. It appears that the critical distinction now, one first advanced in the prior Administration, will be cemented--the issue is not the place of occurrence but the form of the delict.
"The NSC will take on all national security matters that are strategic in nature and "of such importance that the president of the United States would care" about them, he said. Action groups from various departments and agencies will be formed around specific issues for as long as it takes to resolve them." (Id.).
Surveillance, monitoring, regulation, crime, punishment--for purposes of threats to national security, it appears that everyone is now an American. "Organizational maps within the government will be redrawn to ensure that all departments and agencies take the same regional approach to the world, Jones said." Id. The great task of this edifice will likely be to mesh the complex set of rules applicable to internal and external activity among security forces in a way that will reflect this new seamless approach. That is likely to bring a number of conflicts to light as people begin to understand the enormity of the change suggested in this bureaucratic reorganization. But the Americans have already been moving in this direction. See Boumediene v. Bush, 553 U.S. ___ (2008) (habeas corpus rights apply to non-citizen enemy combatants held on foreign territory controlled by the United States).

Monitoring and surveillance take on critical functions in this new organization. Governance of this new bureaucratic organization will be marked by internal transparency and external security.
The national security process, he said, will also be "transparent to its clients" inside the administration, with meeting agendas and outcomes made available to "the whole community" in real time. Each department will appoint someone to monitor the NSC process, enabling senior officials across the government to be ready to jump into issues without steep learning curves. Id.
Within this system, the difficulties of surveillance of objects of interest will again become an important issue. That issue will hit home harder under a regime that rejects distinctions between citizen and foreigner, between activities within the national territory and those without. It is likely that such an organization may see revisited, in more refined and elegant form, the objectives of DARPA Information Awareness Office (IAO).

Still, the most dramatic change was the one lest interesting to the media covering the announcement of this new bureaucratic institution--the embrace at the highest levels of the federal state apparatus of the status of non-state actors as public entities, or at least of entities that engage in regulatory activities once reserved solely to states.
"Although Jones said he strongly supports increased resources for the State Department, which is increasingly dwarfed by the size and expanding missions of the Defense Department, he has long been an outspoken proponent of a "pro-active military" in noncombat regions. He has advocated military collaboration with the oil and gas industry and with nongovernmental organizations abroad." Id.
Consider the enormity of this minor admission. Beyond the obvious--the expansion of the scope of military activity to those carefully refined in the context of the administration of Iraq something even more interesting is suggested. Jones implies both the extent to which certain non-state actors have been playing a public role, and the necessity of states to engage in joint activity with these actors. The new NSC will thus be grounded in an understanding of political authority as now diffused among states (principally) but also asserted by and through non-state actors. The NSC provides a concrete application of an understanding of changes in conceptions of power that have been expressed in academic literature in its modern form since the last third of the last century. The NSC puts into practice, in a transnational context ,the understanding the the "'night-watchman' state is rapidly being replaced by a state whose functions range from welfare to commercial activities and from law and order to education." (Carol Harlow, "Public" and "Private" Law: Definition Without Distinction, 43(3) Modern Law Review 241, 257 (May, 1980) citing to Kamenka and Erh-Soon-Tay, Beyond Bourgeois Individualism: The Contemporary Crisis in Law and Legal Ideology, in Feudalism, Capitalism and Beyond (1975)("The major sphere of social life passes from the private to the public, not merely in the sense that more and more activity is state activity, but in the sense that more and more 'private 'activity becomes public in its scale and its effect, in the sense that the oil company is felt to be as 'public' as the state electric utility." Id., 133)).

And there it is; from the idea in the 1970s of the diffusion of public and private power, and its necessarily amalgamation in the construction of legal and political systems, to the realization of that understanding within the security apparatus of the United States. This may well have enormous repercussions in the future (though not now). And not just them. The effect will be felt by public private actors as well. This NSC program moves us a step closer to the day when it may be more credible to insist that private actors asserting public powers be held to the standards of public law in those activities. Foremost among the consequences will be to spur the movement to begin to apply directly to these non-state actors the obligations imposed on states through law.

Thus, as in other places and times, what appears to be a small change in bureaucratic organization may portend greater changes, and changes of an entirely different character. It appears that even the most powerful of states must, if it means to survive, bow to emerging realities. If it means to thrive, it must naturalize those realities into its political culture. This the Americans appear to be attempting in a small but important way. The revamped NSC represents a step toward incorporating new sensibilities about monitoring and rule making, a move away from distinctions made on the basis of action within or outside the national territory, and an embrace of the idea that non-state actors may assert regulatory power and may be the subject of relationships once reserved only for other states.

But this change also introduces an old actor in a new role: "Jones, a retired Marine general, made it clear that he will run the process and be the primary conduit of national security advice to Obama." Id. The style is reflective of the nature of the bureaucratic model from which it is both drawn and with which it is to be fused.
"I believe in collegiality . . . in sounding out people and getting them to participate," Jones said. "I notice the president is very good at that." But he made clear he plans to apply military-like discipline to the NSC. "The most important thing is that you are in fact the coordinator and you're the guy around which the meetings occur. When we chair a principals meeting, I'm the chairman." One of the first of many internal Bush administration clashes occurred when Cheney proposed that he, rather than Rice, chair NSC meetings. Id.
As a state recreates itself, and its internal order, it would do well to remember not merely the necessities of external and internal threats, of acknowledging and incorporating new political realities and actors in governance, and of new forms of regulatory systems grounded in surveillance. It ought also to recall the rise and fall of Lucius Aelius Sejanus and the succession framework that marked Roman Imperial government from the time of Claudius.

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