Thoughts – What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?


The Snowden revelations have caused what Bruce Ackerman from Yale law school describes as a “Constitutional Moment”.  Another liberal legal scholar, Jonathan Turley from George Washington University, has been outspoken about the utilization of executive authority and how the current and former administrations, congress, and courts (Madisonian Institutions) have in some instances abdicated their separation of power duties to create what he calls an “Imperial presidency”.  This is an educated, elegant, and hip way of saying “dictator”.

This imperial presidency notion by Turley is interesting because if we revisit Michael Glennon’s research on “National Security and Double Government”, we get a completely different picture of the real power of our elected officials and institutions.  The picture we get from Glennon’s research is that America’s National Surveillance Network (Trumanites) and bureaucratic institutions exercise real power and are the true source of government policy.  True policy bubbles up from the bureaucracies to the Madisonian institutions.  So what happens when the U.S. National Surveillance State is authoritarian and we have a president in executive authority that is authoritarian in nature too?

I have argued the U.S. National Surveillance State is deep into authoritarian territory by using the framework in the essay “The Constitution in the National Surveillance State”, written by Jack Balkin at Yale Law School.  Those arguments are what comprise Part 1 of this research blog.  The second part to my question regards the addition of an “imperial presidency” to an authoritarian national surveillance system.  The question changes a little  because the task is to understand if an alliance of mutual interest in ideology and policy exists between the authoritarian executive authority and the national security network of institutions.  If an alliance of mutual interest exists between the authoritarian executive authority and authoritarian national surveillance network, where do the ideas that support the particular ideology of the executive come from?  I argue in Part 2 of this research blog those ideas come from the writings of Progressive Liberal Legal scholars, The Center For American Progress, and to a degree the Universities that support the research and implementation of those ideas.  If this alliance exists, what is the likelihood of any meaningful oversight of our institutions occurring?  Moreover, what is the likelihood the imperial executive authority will actually expand the powers of the national surveillance networks and other bureaucracies?  It is possible, the probability this has occurred doesn’t always come in hard fact but measures of degree, usually.

Our Constitutional System is built upon the separation of powers principle.  With an imperial executive authority that is ideologically aligned with an Authoritarian National Surveillance state, we run into a paradox of oversight because those in charge of watching the watchers are now enablers of the watchers.  Net net, we have an autocracy not a democracy.

Given this paradox, I decided to test my ideas by questioning those progressive liberal legal scholars and some bureaucrats who have provided the ideological ideas of the current imperial executive authority.  They also, perhaps, provide many ideas to the national security network was well.  The method I chose to utilize engaging them was to include them on the email dialog I was having with  Geoff Stone and the NSA Review panel over email. (See here)  This was going to create some awkwardness but given the explicit and sometimes tacit acceptance of infringements on our rights by this group, I figured it was fair game to put them on the spot.

Besides, this was an intellectual exercise using their ideas, and these people are world class intellectuals. I figured if I was wrong about my research findings and pushed hard enough, one of these blue ribbon legal scholars would find good sport in shredding my work and embarrassing me in front of the group.  I put myself in the position to be shredded if the opportunity existed, but come to find out nobody did, could, or just didn’t want to.  From my experience though, if scholars at this level can eviscerate your findings/ideas, regardless of who you are, they will do so with guilty pleasure.  You don’t get to where they are by being passive.  This is not a group that can be bullied.

Given that conundrum, the Tools of Argument  I decided to employ came from the book “Rules for Radicals”.  This just so happens to be the book  liberal progressives use in their political discourse of which both Hillary Clinton and Barack Obama are followers of.  I thought this was an appropriate and meaningful use of the principles because I figured if any of these scholars complained about my methods, I would just make them own up to their own book of accepted rules (Rule 4).  This is how I used the rules:

Rule 1: “Power is not only what you have, but what the enemy thinks you have.”  Personally, I am a consultant with a background in entrepreneurship, technology, and strategy.  I have no employer or research institution supporting me, which means that I had the power to engage in my own research and activism without the prospect of being coerced.  Coercion in business, politics, and higher education research is more powerful than one may think because it is usually grounded in economic arguments.  Moreover, when I engaged in this research I was between projects and spending the majority of my time with my toddler son.

Rule 2: “Never go outside the expertise of your people.”  This was more of an introspective exercise because I was doing this solely on my own, because it was there, and I knew I could do it.  My expertise is in applied research so learning, adapting, and maximizing come with the territory.  I am accustomed to environments where the rules are vague, the environment changes, and practicing some political agility is required.

Rule 3: “Whenever possible, go outside the expertise of the enemy.”  Look for ways to increase insecurity, anxiety and uncertainty.  I am pretty sure my abrupt and blind side attack on the ideas and words of Geoff Stone over email created some uncertainty. Including the rest of the NSA review panel was probably unwelcome and politically disconcerting for them all.  A quick internet search of Chris Allsup won’t pull up much on me except for maybe a profile and as of August 2014 this blog and my twitter account.  Outside of that I don’t show up in internet searches.

Rule 4:  “Make the enemy live up to its own book of rules.”  Public intellectuals, by their nature, are open to public outreach and scrutiny.  During 2013 after writing the paper supporting Part 1 of this research blog, I reached out to hundreds of people to ask for their perspectives. I received the bulk of my very limited responses from progressive liberal legal scholars.  I figured someone, or a group of people, know the truth about the real nature of our national surveillance system and the ideology supporting an imperial presidency.  Sometimes a person, or a group of people, tell the truth by accident.  If these scholars didn’t like my methods, tactics, or rhetoric in my emails then they have nobody to blame but themselves because the ones I employed are exactly the ones they support either explicitly or tacitly.  Perhaps, I was a little naive to think they would be flattered by my use of them.  I even periodically used a little salty language because that also deemed acceptable by the current administration and its supporters. (Example: Chickenshit).

Rule 5:  “Ridicule is man’s most potent weapon.” Public intellectuals are accustomed to being challenged, but in this circumstance the findings of my research were not something any of these people want to publicly acknowledge knowing or try to refute.  The notion of positive rights and dubious interpretations of the Constitution is so easy to pick apart and ridicule its almost not even sporting.  Even though I am a consultant between projects, I decided to use my temporary status as a stay at home father as a rhetorical weapon too. If a stay at home parent can get the best of the blue ribbon liberal legal scholar crowd on the points of fact, the rhetoric, methods, and tactics in a argument its going to be painfully embarrassing, especially if the frameworks, methods, and tactics, used to make my points are theirs.  Anyone who has studied law will tell you the last place on earth a person will find justice….is the U.S. justice system.  Justice that is poetic in nature, must be found elsewhere.

Rule 6: “A good tactic is one your people enjoy.” It is a guilty pleasure in any argument to be able to beat your opponent with their own words, logic, and actions.  A tactic I used to keep the pressure on this crowd was to periodically take an article written by one of them and shred it in front of the group where appropriate.  This also helped keep the list of people on the email distribution fresh and expanding. Perhaps causing more embarrassment and awkwardness.  Newcomers added to the distribution list were usually praised for something they said in public and/or put on the spot to validate or invalidate a point.  I enjoyed this tactic because I had to keep hunting for articles and people who could serve a meaningful use to the process.  That never gets old in my book, especially if you already have the advantage because prestige in this environment quickly becomes a liability.  Prestige as I have learned through this process can only take people so far.

Rule 7: “A tactic that drags on too long becomes a drag.” While this is true in most circumstances, I was an army of one in my pursuit.  I enjoy searching for more knowledge and articles that either refute or support research and points of view.  While there was risk these legal scholars would eventually put me on their spam lists, I kept periodically adding new people to the distribution list. This stirred the pot enough to keep it fresh and it only takes one person to reply to everyone to negate the rhetorical counter argument of cognitive dissonance.

Rule 8: “Keep the pressure on. Never let up.”  I decided out the gate to push hard.  So hard that it would cause a reaction.  Either my arguments were going to stir a debate or someone would eventually request being taken off the list.  Prestige has risks.  Someone who engaged in this debate would have to prove my facts and thinking were incorrect.  Since my thinking was done through the prism of their works and the pedigree of my facts were excellent, anyone who engaged in the debate would have immediately put themselves at risk of public embarrassment.  The least worse move someone could make was to request removal from the list.  It was my job to raise the pain threshold to a point that someone would break and others would follow.  As soon as this happened, I immediately stopped the exercise because I didn’t want to let anyone else off the hook.  I also didn’t know what I was going to do next anyway, but like any argument/battle, you want to leave your options open to hit your opponents as many times as possible.  Anything less would be uncivilized.

Rule 9: “The threat is usually more terrifying than the thing itself.” Imagination and ego can dream up many more consequences than any activist. (Perception is reality. People and large organizations always prepare a worst-case scenario, something that may be furthest from the activists’ minds. The upshot is that the organization will expend enormous time and energy, creating in its own collective mind the direst of conclusions. The possibilities can easily poison the mind and result in demoralization.)  While I have always used my real identity in all my communications, effectively I am a nobody with little to no public profile.  I am confident this reality would drive some questions and investigative work to be done on who “Chris Allsup” is.  Perhaps someone on my distribution list even engaged the government or one of its foreign allies to spy on me.  See my email notes here and here on whether you think that happened for yourself.

Rule 10:  “If you push a negative hard enough, it will push through and become a positive.” Reactions from the other side can win the public to your side because the public sympathizes with the underdog.  I eventually re-engaged after saying I would stop, but did so only when another liberal scholar was publicly judgmental of other scholars for not speaking out against the Constitutionality of surveillance programs and expanding executive powers. I thought this was a reasonable point to jump back into the game by using Jonathan Turley’s criticisms to back my own.  During the Bush administration the progressive liberal legal community was outraged, including then Senator Obama himself, about infringements on civil liberties.  I took the opportunity to point that out to the group, to much of their own dread probably, and then continued the exercise.  Keep the pressure on and keep pressing until the dark bleeds light. More to come on this later

Rule 11: “The price of a successful attack is a constructive alternative.” Never let the enemy score points because you’re caught without a solution to the problem. ( If you’re not part of the solution, you’re part of the problem. Activists have an agenda, and the strategy is to hold a place at the table, to be given a forum to wield their power. So, they have to have a compromise solution.)  My solution to the digital security, surveillance, and privacy issue was written in 2011 as my masters thesis and comprises Part 3 of this blog.

The solution to this modern problem is that Constitutional interpretation needs to recognize that we have a digital life that coexists with our real life and effectively they are one in the same and should be treated the same on a Constitutional basis.  Encrypting data at rest and data in motion and moving intelligent multi-factor authentication as the unofficial default standard for user authentication in the technology industry to an official standardized approach. This would enable explicit rules of law to be created in order to protect our information, identities,  privacy rights, and constitutional rights.  Also, under the 5th amendment, your digital self should never be able to incriminate your real self, because they are effectively one in the same.  This approach would still enable law enforcement to do its job and access information when it can prove it has probable cause. I gave these legal scholars this argument and answer during this evolving process and dialog.

Rule 12:  “Pick the target, freeze it, personalize it, and polarize it.” Cut off the support network and isolate the target from sympathy. Go after people and not institutions; people hurt faster than institutions. More to come on this but when it became obvious over 2013 and 2014 the Madisonian & Trumanite officials, and the courts to a degree, had little interest in the constitutional rights of citizens, I decided to inform as many Inspectors General in the U.S. Government of a crisis of governance.  I did this because the oversight community recently took the unprecedented action of writing to Congress to complain that the organizations they are chartered with overseeing are stonewalling information and investigations on a wide basis.  Emblematic of an authoritarian bureaucratic network that is working in an alliance with an ideologically driven imperial executive authority?  Here is the letter they sent to congress in August 2014.

The process for this activism has been non-linear to say the least, however I did finally persuade one person on my distribution list to respond to everyone.  General Michael Hayden responded when I wrote an email that made the point that it appears the National Surveillance State can Spy on Americans with impunity, torture people with impunity, and then lie about it with impunity.  In the same note I pointed out a recent article published by Noam Chomsky that successfully argues that American Doctrine has only increased the risk of U.S. Citizens.  In typical political/bureaucrat fashion, the least worse thing General Michael Hayden could do was respond by saying, “Clearly my spam filter isn’t working”.

Where does this go next?  The people still need to demand change until they get it because even the staunch progressive muse Paul Krugman believes the US is authoritarian.  But he  probably won’t be publicly arguing against progressive ideology anytime soon.  Krugman even uses the same framework from Jack Balkin to make his point that I did in Part 1.  Those in power need to see change, feel change, and listen to those who put them in power in order for real change have the opportunity to actualize.  That is my $0.02.  More to come.

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1 Response to Thoughts – What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?

  1. Pingback: Thoughts – A Reasonable Articulable Suspicion Regarding Conspiracy Theories and Government Surveillance of U.S. Citizens | @The Heart of Big Brother

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