Journal of Law, Information and Science
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Simon Chesterman
Oxford University Press (2011) ISBN 978-0-19-958037-8
Hardback, xii/297 pgs
In his 2007 Towards the Light,[1] A C Grayling identifies 11 September 2001 as a turning point in the history of liberal democracy: the point where the world’s major democracies began deconstructing the fundaments of their own constitutional orders in response to the perceived threat of global terror. Some of the major challenges to freedom and liberty in the post-9/11 period have arisen in the context of intelligence collection and surveillance. Simon Chesterman’s One Nation Under Surveillance is a timely examination of the theory and practice of governmental surveillance, with particular focus on the Anglophone democracies and the United Nations. One Nation Under Surveillance is a cogent contribution to the growing body of post-9/11 literature examining contemporary political developments in tension with the fundamental values of political liberalism, in this case particularly the right to privacy and due process of law.
The volume is divided into three parts, each composed of three chapters. Part I examines the theory of intelligence. Chapter 1 examines the role of intelligence in post-Cold War politics, the question being whether intelligence activities can be regulated, and if so how. Chapter 2 examines the concept of norm and exception, of legal order and emergency power and how contemporary emergencies and exceptional contingencies ought to be accommodated into the constitutional order of liberal, parliamentary democracy. Chapter 3 examines the concept of transparency in intelligence, the role of the media and public accountability in relation to some particularly problematic governmental practices such as special rendition and torture.
Part II provides a thorough overview of intelligence practice of the United States, the United Kingdom and the United Nations, which Chesterman explains are representative of three (problematic) approaches. Chapter 4 deals with the United States’ approach of outsourcing questionable intelligence services to private contractors. Chapter 5 explains a largely unsuccessful attempt to reaffirm the rule of law by basing intelligence activities in legislation in the case of the United Kingdom. Chapter 6 discusses the reliance on member state intelligence in the case of the United Nations. Chesterman draws on an extensive literature to provide examples of the difficulties he perceives with intelligence practice. Although he focuses on the United States and the United Kingdom, he also draws the Commonwealth and European democracies into his discussion where appropriate. The result is a truly informed, balanced and general treatment of the subject that is of international significance.
Part III provides a sketch of Chesterman’s proposed response to some of the problems he identifies in Parts I and II. Chapter 7 examines the most appropriate structures for ensuring the accountability of intelligence services. Chapter 8 suggests that the focus of accountability should shift from intelligence gathering to its use. Chapter 9 argues that this requires the negotiation of a new ‘social contract’ in which individuals cede the state power over information in exchange for security and convenience.
Chesterman’s discussion in Chapter 2 of the exception and the rule is a welcome contribution to the growing literature in reference to erstwhile Nazi political philosopher Carl Schmitt. Schmitt’s critique centers on the notion that liberalism, which defines the sovereign as the lawgiver,[2] fails to account for the real nature of sovereignty. This is, rather, the authority to determine when the ordinary law does not apply and what does apply in its place.[3] Schmitt’s political philosophy has demanded more serious attention since recent events have brought the desirable scope of emergency executive action to the fore. Chesterman’s contribution is a clear catalogue of the contemporary approaches to emergency power, which he divides into three camps. There are those that advocate for ‘business as usual’, that is that stick to the liberal (or libertarian) position that not only must governments respond to emergencies within the constitutional framework but also subject to the ordinary law of the land. He cites examples such as Justice Antonin Scalia in the case of Hamdi v Rumsfeld.[4] The second camp admits of the necessity for extraordinary prerogative action, but maintains that this should be accommodated within the ordinary liberal framework, for example Bruce Ackerman.[5] And there are those that call for the suspension of the ordinary legal order in times of emergency, most notably incumbents such as George W Bush, the self-styled ‘decider’.
Schmitt’s critique of liberalism, while ultimately flawed, is a sophisticated one, which cannot simply be dismissed on the basis of his dubious activities during the Third Reich.[6] It is also highly relevant to contemporary political developments. So much is evident from the recent renewal of interest in Schmitt’s work. In his brief treatment, Chesterman contextualizes Schmittian-type approaches that would provide a good starting point for any modern student of Schmitt’s philosophy. In particular, he portrays the shades of Schmitt observable in some of the modern practices of liberal democratic governments, such as the removal of terror suspects to ‘black sites’ beyond the national jurisdiction (and national constitutional order) without the normal due process of law, and assertions of ever-expanding prerogative by executive governments.
A major theme in the book is the idea of the end of privacy: ‘Privacy advocates urge restraint, suggesting absolute limits on the powers available to government and tight regulation of those powers that are granted, such as through a system of warrants where cause must precede surveillance. But they will not stop it.’[7] Chesterman will perhaps be criticised by privacy scholars for conceding the point too easily, but he joins a number of other respectable voices urging for a shift away from privacy-based analysis,[8] and his argument is compelling. He provides a short critique of privacy theory to date, which he regards as ‘despairing of conceptual clarity’, in particular what individual interests privacy is actually meant to represent. But this is only one reason why privacy activists have been unsuccessful in drawing a line in the sand against the tide of surveillance. Chesterman’s main argument is realist: he builds a convincing argument that a high degree of privacy is simply not likely to be a feature of future society, for three separate reasons. ‘The combination of threats, technology and culture has ensured the inexorable expansion of government surveillance powers.’[9]
Firstly, the nature of modern threats makes traditional controls on intelligence difficult. The threat of global mass terror is not a Clausewitzian conflict between territorially-defined political communities.[10] It is by nature dispersed and transnational. Terrorist activities constitute attempts by non-state actors to manipulate domestic democratic processes through fear. These actors may base themselves within or outside of the national territory; they may be citizens, non-citizen subjects in residence or in transit, or indeed stateless persons. These facts make the traditional distinctions between domestic and foreign threats of little normative relevance. It renders the traditional distinction between domestic law enforcement (subject to civil liberties and constitutional restraints) on the one hand and foreign intelligence (subject to minimal rules) on the other inutile to protect citizens’ privacy.[11]
Chesterman’s second argument for the end of privacy is technology. Information and surveillance technology is growing rapidly, fuelled not only by the perceived threats of terror but also consumer-driven convenience. As the volume of information on individuals grows, and digital technology renders its aggregation and analysis easier, maintaining true informational privacy seems ever less likely. Of course, much of this is driven by individuals’ behaviour itself, from their use of social networking to their consumption habits. Mobile phones make our location knowable at any given time; technology has enabled the collection of CCTV recordings possible in a way unimaginable decades ago; consumer loyalty programmes accumulate detailed data on our consumption habits; social networking sites reveal all sorts of private information about ourselves and the people around us. The central part that technology plays in our daily lives gives rise to the third argument, the third stake in the heart of privacy. We have a culture that is simply more tolerant of surveillance and information-gathering than the culture (legal and popular) that characterised the last 100 years of industrial and post-industrial Western society. We are becoming, in Chesterman’s view, more willing to sacrifice privacy for both convenience and security.
Part III of Chesterman’s book is entitled ‘Change’ and comprises three chapters, entitled ‘Watching the Watchers’, ‘The Transparent Community’ and finally ‘A New Social Contract’. In this Part, Chesterman sketches his vision for the future of liberal democracy after the end of privacy. His ultimate solution is a new social contract to ‘defend freedom without sacrificing liberty’ — a reference to the kind of paradoxical spin that is used to pitch distasteful legislation, taken from Alan Bennett’s History Boys.[12]
Commensurate with his views on the end of privacy, another of Chesterman’s main themes is that the focus of intelligence regulation should be the use of intelligence rather than its collection. For the most part, intelligence practice is less ‘cloak and dagger’ field work than the collation and analysis of data, perhaps data already in the public domain. Of course this does not underplay the importance of controlling measures such as special rendition to black sites and torture, insofar as they are used to gather intelligence. But besides these obvious abuses, for the most part it is the use, not the collection, of information which harms individuals. He uses the example of Canadian citizen Maher Arer, who based on Canadian intelligence, was detained by United States officials while transiting through New York. Taken to Jordan and then Syria, Arer was tortured and detained for a year without a charge laid against him in any jurisdiction. Chesterman notes that privacy protections in Canada are extensive when compared to other Anglophone jurisdictions, and that Canadian intelligence agencies enjoy less extensive powers than their counterparts. The intelligence collected on Arer was not overly invasive or even necessarily incorrect: no serious challenge has been mounted to the intelligence gathered by Canadian government agencies. The problems stemmed from how that information was used, in particular its sloppy analysis and communication to United States officials.[13]
Chesterman uses the idea of a social contract to argue for new principles to govern surveillance and the use of intelligence, which with adaptation should apply to all jurisdictions. These boil down to the three basic principles: that intelligence activities must be public, must be based in law, and must be consequence-sensitive (ie ameliorate the intended and unintended actual consequences, as opposed to being justified solely on a rights analysis).[14] These principles, he concedes, are obvious, but their reformulation into a new approach is necessary because the world’s major democracies and the United Nations have not lived up to them.
The United States only terminated a contract outsourcing assassinations to a private company in 2009, Britain has the most extensive CCTV regime in the world... [and] the United Nations continues to maintain a list of hundreds of individuals whose assets are frozen world-wide without any evidence of wrongdoing.[15]
Chesterman uses the social contract to express his recommendation ‘partly because the concept is sometimes invoked... by the intelligence community itself.’[16] Introducing his final chapter, he briefly discusses Hobbes’ Leviathan,[17] Hume’s famous utilitarian critique of contract theory,[18] and the concept of a hypothetical contract used by Kant and developed by John Rawls in his Theory of Justice.[19] Chesterman asserts that the Rawlsian approach, ‘to describe a form of political association based on some measure of reasoned consent’ finds support in the constitutional structures of liberal democracies, such as the United States Declaration of Independence.[20] The Declaration of Independence, however, with its assertion that legitimate political authority is derived from the ‘consent of the governed’, is more reflective of Lockean[21] than Kantian or Rawlsian social contract theory. That is, it is a reference to actual, personal consent, and not consent as an ‘ideal of reason’ that provides rational moral standard of political legitimacy.[22]
Nonetheless, Chesterman goes on to suggest that the terms of this contract amount to a consensual ‘exchange’ of privacy by the citizen for security and convenience: ‘[t]he diminishing sphere of life that may be truly regarded as “private” is not being taken, but given in exchange for these benefits.’[23] This echoes Blackstone’s summation 250 years ago that the ‘wild and savage liberty’ under the laws of nature that men give up is more than a fair price for the more valuable species of ‘political’ or ‘civil liberty’ that they obtain.[24] The subject matter of this new social contract is not political submission, (that is, after all, already a fait accompli), but rather informational. Accordingly, under Chesterman’s informational new deal, we must grant our governments access to information in exchange for security and convenience, but under terms that include promulgated rules about informational impingement based on the rule of law and subject to public scrutiny and accountability to the greatest degree possible.
My main concern about Chesterman’s work is in its application, albeit late in the book, of social contract theory as the basis for consent to surveillance. The problem with much social contract theory, especially modern ‘hypothetical’ social contract theory, is that it maintains the intuitive and compelling rhetoric of consent but proposes a test of political legitimacy that has nothing to do with the actual state of mind of the ‘consenting’ subject. Hypothetical consent in fact has nothing to do with the empirical, subjective judgment of the individual about the government under which he or she lives.[25] Hypothetical consent is by nature imputed to the individual because the philosopher thinks that he or she would consent to such a government, if he or she were reasonable. The demands of actual, personal consent are far too rigorous, and will never be universally satisfied. Although some people advocate reform to make personal consent the basis of political legitimacy, no one credibly asserts that it actually does legitimate political power as it exists, even in liberal democratic polities today.[26]
Even those contract theorists that maintain the importance of actual, personal consent betray the empirical identity of the individual citizen (or subject). They generally resort to a notion of ‘tacit consent’ first introduced by Locke. Chesterman’s suggested contract does this also. He imputes consent rather than exploring tangible evidence of its expression or meaningful implication. In Chesterman’s language, ‘we tolerate’ expansive intelligence budgets, ‘we submit’ to CCTV, ‘we allow’ ourselves to be fingerprinted on entry into the United States. These are all putative manifestations of tacit consent, in the sense of consent implied from conduct rather than expressed in so many words. The difficulty with tacit consent is, as Locke recognised, ‘what ought to be look’d upon as a tacit Consent, and how far it binds, i.e. how far any one shall be looked on to have consented, and thereby submitted to any Government, where he made no Expressions of it at all.’[27] As Plemenatz noted, in some cases silence may properly be regarded as acquiescence, and in some cases acquiescence may properly be regarded as consent.[28] Without a real analysis of the true voluntarism of silent acquiescence, whatever ‘tacit consent’ is said to flow cannot be guaranteed to protect individual autonomy from governmental impingement.
Toleration, submission, allowance are not forms of acquiescence that are acceptable in other arenas; for instance, medical treatment, sexual intercourse, or even financial transactions. In reality, our submission is a Hobbesian sort of acquiescence to ‘overwhelming power’[29] that, if we are serious about consent at all, we must recognise as being of little relevance.[30] Chesterman also discusses the American oath of allegiance, first published in the late nineteenth century, which might constitute an express act of political consent. But the deeper question still nags: is such consent really meaningful? After all, the Russians swore their oaths of allegiance, too. But it is commonly accepted that many of them did so of compulsion and not volition. Chesterman does not explore this question, or the absence of meaningful choice for most citizens. This is despite the fact that surveillance and executive power threaten to undermine the accuracy of our presumption that we citizens of the free world swear our oaths of allegiance freely.
The relation between the government and governed is usually — perhaps necessarily — characterized by a number of features. These include informational asymmetry, power asymmetry, institutionalisation, vulnerability, purpose-orientation, discretion, and coercive force.[31] No social contract is going to change this fact. In most relationships that bear these characteristics, courts and academics alike have recognised the inadequacy of the contract/consent paradigm to protect the autonomy of the weaker party. They have applied, or advocated the application of, duties of a fiduciary-like nature.[32] What is needed for surveillance law is a functional, relational concept of governmental duties instead of a status-based one. That is precisely the sort of concept that contract is impotent to provide.
In a volume of over 250 pages, less than 15 are dedicated to Chesterman’s social contract theory. These are illustrative of the unsuitability of social contract and consent theory to address the problems of the twenty-first century, and of the failure of eminent legal scholars to grasp the branch of the social contract tradition that might be more appropriate. However, the social contract proposal should not be seen as the major contribution of this fine volume to the current debate on the appropriate limits and role of governmental surveillance. The utility of One Nation Under Surveillance is significant. Firstly, it contains a wealth of factual information. Secondly, it contains useful references to the relevant law and its sources, and an overview of the secondary literature that has grown up around privacy, intelligence and surveillance law. In particular it contextualises a growing body of literature on emergency power, and exposes the problematical Ideengeschichte of contemporary legal arguments for extra-constitutional executive action. Thirdly, it provides an overview of surveillance theory that is historically informed and comparative. Fourthly, it provides a compelling argument for a realist approach to normatising post-privacy governmental surveillance. For these reasons, it is a welcome addition to any library and will prove to be a valuable resource for students and researchers in the area. And, it is to be hoped, for our policymakers and ‘deciders’.
Jason Grant Allen LLM Candidate, University of Tasmania. BA & LLB (Hons) (University of Tasmania); LLM (Hons) (Universität Augsburg). Attorney & Counsellor-at-Law (New York).
[1] A C Grayling, Towards the Light: the story of the struggles for liberty and rights that made the modern West (Bloomsbury, 2007).
[2] The classical English contract theorists Thomas Hobbes and John Locke adopted Jean Bodin’s conception of sovereignty as lawgiving authority in their respective political theories. See M M Goldsmith, ‘Hobbes’s “Mortall God”: Is There a Fallacy in Hobbes’s Theory of Sovereignty?’ (1980) 1 History of Political Thought 33.
[3] See Carl Schmitt (George Schwab trans), Political Theology: Four Chapters on the Concept of Sovereignty (MIT Press, 1985); for an overview of Schmitt’s reception among Anglophone liberal philosophers, see Tracy B Strong, ‘Dimensions of the New Debate around Carl Schmitt’ in Carl Schmitt (George Schwab trans), The Concept of the Political (University of Chicago Press, 1996).
[4] [2004] USSC 2730; 542 US 507 (2004).
[5] Or John Locke. Schmitt’s interpretation of Locke is flawed in that it underestimates the role that prerogative plays in the latter’s political theory. Schmitt says that the exception is something ‘incommensurable’ with Locke’s doctrine of the constitutional state: Schmitt, above n 3, 13. But this seems hard to reconcile with Chapter XIV of Locke’s Second Treatise, ‘Of Prerogative’ which begins with the assertion of government prerogative power ‘to act according to discretion, for the publick good, without the prescription of the Law, and sometimes even against it’: John Locke (Peter Laslett ed), Two Treatises of Civil Government (Cambridge University Press, 1960) Second Treatise §160, 393.
[6] A Nazi court philosopher for some years during the NS regime, Schmitt ultimately left Berlin in some disgrace after the genuineness of his National Socialism was called into question. Perhaps he was just a critic of Weimarer parliamentarianism, whose philosophy followed the Zeitgeist of 1920s and 1930s Germany, and who opportunistically allied himself with the sort of dictatorial government he had advocated for Germany. Schmitt’s anti-Semitism, however, is beyond question: see Carl Schmitt, ‘Closing remarks on the Conference of University Teachers on the Struggle against Jewish Thought in German Jurisprudence’ (1936) 41(2) Deutsche Juristenzeitung 1194, 1195: ‘The necessary task of the library is very difficult; it is self-evident that we must identify so exactly as possible who is a Jew and who is not a Jew. The smallest errors in this regard can be exaggerated, cause confusion and help the enemies of National Socialism to cheap triumphs... First on the basis of an exact register can we work further in the direction of library science and through the cleansing of our libraries protect our students from confusion, which arises when we tell them on the one hand that we are engaged in a necessary struggle against the Jewish spirit, while on the other hand a normal law library at the end of the year 1936 still looks as if the greater part of legal literature is produced by Jews... All legal texts of Jewish authors belong according to library science (as Reichsminister Dr Frank has already remarked so fittingly), without differentiation in a special section called “Judaica”.’ Translation by reviewer.
[7] Simon Chesterman, One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford University Press, 2011) 225.
[8] See also Jed Rubenfeld, ‘The End of Privacy’ (2008) 61 Stanford Law Review 101.
[9] Chesterman, above n 7, 225.
[10] See Michael Gelven, War and Existence: A Philosophical Enquiry (Penn State Press, 2000) 42; Carl von Clausewitz defines war as ‘an act of violence intended to compel our opponent to fulfil our will.’
[11] Chesterman, above n 7, 231-8.
[12] Alan Bennett, History Boys (Faber and Faber, 2004).
[13] Chesterman, above n 7, 224.
[14] Chesterman, above n 7, 255.
[15] Ibid 258.
[16] Ibid 248.
[17] Thomas Hobbes (Richard Tuck ed), Leviathan (Cambridge University Press, 1991).
[18] David Hume, ‘Of the Original Contract’ in Ernest Baker (ed), Social Contract: Essays by Locke, Hume and Rousseau (Oxford University Press, 1962) 167.
[19] John Rawls, A Theory of Justice (Clarendon Press, 1972).
[20] Chesterman, above n 7, 225 249-50.
[21] See Locke, above n 5, §134, 373. The actual influence of Locke on eighteenth century American politics is debated, for example see John Dunn, ‘The Politics of Locke in England and America in the Eighteenth Century’ in John Dunn, Political Obligation in Historical Context (Cambridge University Press, 1980); for an overview see Barbara Arneil, John Locke and America: The Defense of English Colonialism (Oxford University Press, 1996) 12.
[22] See John Rawls, A Theory of Justice (Belknap Press, 1974) viii: ‘The theory that results is highly Kantian in nature.’ See also Robert Wolff, Understanding Rawls: A Reconstruction and Critique of A Theory of Justice (Princeton University Press, 1977) 101-16.
[23] Chesterman, above n 7, 250.
[24] William Blackstone, Commentaries on the Laws of England (1765) Book I, 120-1.
[25] Hannah Pitkin, ‘Obligation and Consent – I’ (1965) 59(4) American Political Science Review 990, 999.
[26] See Harry Beran, The Consent Theory of Political Obligation (Croom Helm, 1987).
[27] For Locke, owning or inheriting land, using public infrastructure such as roads or even using money constituted valid ‘tacit’ consent to political authority: see Locke above n 5, §119, 365-6.
[28] J P Plemenatz, Consent, Freedom and Political Legitimacy (2nd ed, Oxford University Press, 1968) 8. Harry Beran suggests a number of conditions under which acquiescence might constituted valid (ie voluntary) tacit consent as opposed to non-voluntary acquiescence: see Harry Beran, The Consent Theory of Political Obligation (Croom Helm, 1987) 8.
[29] As Carole Pateman wrote, consent-based liberalism tries to protect the autonomy of the individual, when in fact it presupposes the same against all evidence: ‘consent is central to liberal democracy, because it is essential to maintain individual freedom and equality; but it is a problem for liberal democracy, because individual freedom and equality is also a pre-condition for consent.’ The same is arguably true of Chesterman’s informational contract. Carole Pateman, ‘Women and Consent’ (1980) 8(2) Political Theory 149, 151.
[30] Ibid 162.
[31] On purpose-orientation, institutionalisation and asymmetry, see Evan Fox-Decent, ‘The Fiduciary Nature of State Legal Authority’ (2005) 31 Queen’s Law Journal 259.
[32] See for example P D Finn, ‘Contract and the Fiduciary Principle’ [1989] UNSWLawJl 5; (1989) 12 University of New South Wales Law Journal 76.
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