The empire strikes back: How Brandeis foreshadowed Snowden and Greenwald

So-called liberals attack the whistle-blower duo -- and a brilliant Supreme Court justice saw it all coming

By Andrew O'Hehir

Executive Editor

Published May 24, 2014 4:00PM (EDT)

  (AP/Kin Cheung/Salon)
(AP/Kin Cheung/Salon)

In the famous wiretapping case Olmstead v. United States, argued before the Supreme Court in 1928, Justice Louis Brandeis wrote one of the most influential dissenting opinions in the history of American jurisprudence. Those who are currently engaged in what might be called the Establishment counterattack against Glenn Greenwald and Edward Snowden, including the eminent liberal journalists Michael Kinsley and George Packer, might benefit from giving it a close reading and a good, long think.

Brandeis’ understanding of the problems posed by a government that could spy on its own citizens without any practical limits was so far-sighted as to seem uncanny. (We’ll get to that.) But it was his conclusion that produced a flight of memorable rhetoric from one of the most eloquent stylists ever to sit on the federal bench. Government and its officers, Brandeis argued, must be held to the same rules and laws that command individual citizens. Once you start making special rules for the rulers and their police – for instance, the near-total impunity and thick scrim of secrecy behind which government espionage has operated for more than 60 years – you undermine the rule of law and the principles of democracy.

“Our Government is the potent, the omnipresent teacher,” Brandeis concluded. “For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution.”

Kinsley’s anti-Greenwald screed in the New York Times Book Review, and Packer’s longer and subtler essay for the British magazine Prospect, deliberately ignore or finesse the question of what the government has taught us through its black budgets, its institutional paranoia, its super-secret and extra-constitutional spycraft. Those two articles, and others like them, amount to a sophisticated effort to change the subject on the Greenwald-Snowden affair now that its initial impact has faded, and also to reassure by way of bewilderment: In the face of all this confusion about who’s right and who’s wrong, the best policy is to keep calm, carry on and leave all this boring stuff to the experts. Instead of focusing on the larger issues of privacy, power and secrecy articulated by Brandeis or on the corroded nature of contemporary democracy, Kinsley and Packer urge us to deplore the perceived personality defects or political misjudgments of Greenwald and Snowden, and throw up a virtual smokescreen of invidious comparison. OK, maybe that whole NSA thing wasn’t super awesome – but you could be living in Communist Russia!

You know, I have some criticisms of Glenn Greenwald too, and I’d be happy to share them with you, or with him, on some other occasion. George Packer is no dolt, and he scores a few hits on both Greenwald and Snowden in his enormous and detailed article, which at least on the surface is much more evenhanded and thoughtful than Kinsley’s drive-by hackwork. But to observe that Greenwald can make infelicitous or inconsistent statements at times, or that his argument about the chilling cultural effect of mass surveillance is not well worked out, does not add up to “a pervasive absence of intellectual integrity.” For that I’m afraid that Packer – still in ideological rehab, it seems, for his “liberal interventionist” support of the Iraq War and the neoconservative foreign-policy agenda – had better look in the mirror.

When Greenwald derides mainstream journalists (in his response to Kinsley) as “jingoistic media courtiers” tasked with attacking “anyone who voices any fundamental critiques of American political culture,” he is not being polite or diplomatic, and is no doubt painting with too broad a brush. There are numerous exceptions, and as Greenwald surely knows, the newsrooms of the New York Times, the Washington Post and the Wall Street Journal have over the decades been the sites of vigorous internal debate about how best to cover issues of surveillance, espionage and national security. But as a general tendency, he’s more right than wrong, and in this instance Kinsley and Packer are fighting a vigorous rearguard action on behalf of the entrenched interests of the Beltway elite, the self-described serious grownups of the “permanent government” and their well-connected media allies.

Any pretense of a critical relationship toward power -- which was once supposed to be the journalist's role in a democratic society -- has been abandoned altogether (in Kinsley’s case) or eaten away to nothing by reasonable-sounding nuance and dispassionate analysis, as with Packer. Kinsley’s review has already been subjected to widespread mockery, even by “mainstream” commentators like the Washington Post’s Erik Wemple, and no wonder; it reads as if it had been cranked out during a single Acela Express trip from New York to D.C. (and filed by the time he reached Wilmington). Kinsley appears to feel that the entire topic of Greenwald and Snowden is beneath him, and that it raises no questions to which the right-thinking people in his circle don't already know the answers: Journalists have no special rights or privileges, David Gregory was being "perfectly reasonable" when he accused Greenwald on “Meet the Press” of being a criminal, and we simply can’t allow “newspapers and reporters to chase down and publish any national security leaks they can find.” Who gets to decide how, when and whether government secrets are released? Why, the government, of course! Isn’t it obvious?

Packer arrives at a similar destination via a much more circuitous route, and a cleverer one. At least he avoids Kinsley's tone of bemusement and exasperation at other people's childish insistence that any of this is worth getting excited about (a key feature of his Beltway appeal for decades, to be fair). Toward the end of Packer's 5,000-word takedown, he raises some legitimate and interesting questions about the nature of privacy and freedom in the Internet age, along with the suggestion that Edward Snowden had placed his faith in a naive techno-utopian ideal: “The Internet will always be a space controlled by corporations and governments, and the freedom it provides is of a limited, even stunting kind. No one lives outside the fact of coercion – there is always a state to protect or pursue you, whether it’s Obama’s America or Putin’s Russia.” That’s a reasonable philosophical position, but Packer abruptly bails out and concludes his essay with a clang, as if realizing that all that hemming and hawing has left him no place to stand. Greenwald’s choice between obedience to authority and radical dissent excludes “fair-minded public opinion,” whatever that may be, and the distant possibility of democratic reform, which Packer admits the Obama administration has resisted. The end.

We don’t have to wonder what Brandeis would make of all this, or contact him through a medium – it’s all there in the Olmstead dissent. In that case, the court found by a 5-4 vote that federal agents could record private telephone conversations without a warrant, and that the defendant’s constitutional rights had not been violated. (Roy Olmstead was a guy in Washington state who had been convicted of transporting and selling liquor in defiance of Prohibition laws – so this was a story of stupid and misguided federal overreach on several levels.) Brandeis did not agree, and his words of warning from 86 years ago sound like powerful prophecy today.

While the court’s majority took the Scalia-type position that the Fourth and Fifth Amendments covered only physical actions like torture or breaking and entering, Brandeis urged a broader view. “Subtler and more far-reaching means of invading privacy have become available to the Government,” he wrote. “Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” You can say that again. In fact, the more you read of Brandeis’ opinion, the more he seems like a time traveler from the future, shipped backward from the secret X-Men lair of Greenwald and Laura Poitras in a failed effort to divert us from disaster.

If Brandeis does not literally predict the invention of the Internet and widespread electronic surveillance, he comes pretty close. “The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping,” he went on. “Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” Then he goes on to speculate that psychiatrists of the future may be able to read people’s “unexpressed beliefs, thoughts and emotions” and use those as evidence, and as far as I know we haven’t reached that dystopian nightmare yet. (But if that’s the big final revelation from the Snowden-Greenwald trove of purloined NSA secrets, you read it here first.)

But let’s go back to the first two sentences of Brandeis’ conclusion, the part about government as society's potent and omnipresent teacher, teaching the whole people by its example. I encountered that passage again, quite recently, in a startling context. While writing about Gore Vidal earlier this week, I went back and reread Vidal’s extraordinary essay “The Meaning of Timothy McVeigh,” which was published in September 2001 in Vanity Fair (now the publication that employs Michael Kinsley, as it happens). We all had other things to think about in that particular month, so Vidal’s essay was rapidly forgotten, not least because it challenged the official narrative about McVeigh and the Oklahoma City bombing of 1995, not to mention the turn-of-the-century bubble of American confidence and complacency that was about to be popped.

By the time McVeigh was convicted of the bombing, Vidal writes, the mainstream media and the public had gotten bored with him and moved along. He was depicted as a man of “incredible innate evil,” with “no coherent motive for what he had done other than a Shakespearean motiveless malignity.” As Vidal himself would later notice, virtually the same formula would be applied to 9/11 mastermind Osama bin Laden, and for the same reason. Depicting McVeigh as a lone psychopath, or claiming that bin Laden “hates us for our freedom,” removes them from history and evades the question of why they committed seemingly inexplicable acts, a question, Vidal quips, that “the Media are trained to shy away from. Too dangerous. One might actually learn why something had happened and become thoughtful.”

McVeigh remained stony silent during his trial, as befitted the embodiment of evil, and then, before the death sentence was read out, he stood to address the court: “I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me,” he said, and continued with the quotation I have mentioned. Those present at the sentencing were “deeply confused” by this, Vidal wrote at the time, and no wonder. To consider that the guy who blew up 168 men, women and children in the Murrah Federal Building was not some subliterate far-right moron, but a person capable of understanding and applying the words of a legendary liberal jurist to terrifying effect – the government was my teacher, and this was the lesson I learned – simply did not compute.

One can certainly argue that McVeigh’s use of the Brandeis quotation to justify mass murder was perverted and barbaric. Vidal would respond that the same can be said of the government crimes that had angered him, which mainstream journalists had largely ignored or excused. Vidal reads McVeigh as a coldblooded avenger who suffered “from an exaggerated sense of justice” and who saw his horrific deed as commensurate with the government's murders at Waco and Ruby Ridge, and with the bombing of Baghdad hospitals during the 1991 Gulf War. He believed he was at war with the government, either all by himself or with unknown comrades and co-conspirators, and that collateral damage (including his own execution) was to be expected. Throughout his legal proceedings, McVeigh insisted that he had not known there was a day-care center in the Murrah Building. But when asked why he had not apologized for the murder of innocents, he noted that Harry Truman never apologized for killing Japanese civilians by the hundreds of thousands with the A-bomb.

As Vidal and Brandeis and Greenwald would all agree, none of that can be accommodated with the official narrative of American power. That narrative holds that whatever the government does, from the "Collateral Murder" killings in Baghdad to drone attacks in Somalia or Yemen to the indiscriminate collection of Internet and cellphone data, stems by definition from the legitimate exercise of democratic authority. Even when such things go badly wrong, they are the work of statecraft, which stands above the law and the judgment of ordinary mortals. This is precisely the situation of government hypocrisy and criminality that Brandeis warned could lead to anarchy, in the sense of a widespread refusal to recognize the legitimacy of the state. Creeping anarchy is everywhere these days, and not just among the Cliven Bundys or Edward Snowdens of the world. They are leading indicators of a widespread trend; trust of the United States government has been trending downward since the mid-'60s, and continues to reach new lows with every new poll. Kinsley and Packer have given themselves the Sisyphean tasks of quelling anarchy and propping up the state.

Any systematic opposition to the deeds of the state, and any attempt to interrogate its mysteries beyond the boundaries of the official narrative, is likely to be depicted as treasonous, as tinfoil-hat material or even as terrorism. Doing a series of network news interviews after McVeigh's execution, Vidal describes how "the interchangeable TV hosts handle anyone who tries to explain why something happened." First, he is asked whether he is claiming there was a conspiracy. "A twinkle starts in a pair of bright contact lenses ... there is a wriggling of the body, followed by a tiny snort and a significant glance into the camera to show that the guest has just been delivered to the studio by flying saucer."

It would be obscene to suggest any parallel between Timothy McVeigh and Edward Snowden, but I don’t have to. Defenders of the official narrative have already drawn the comparison, explicitly or otherwise. Both are loners with no history, manifestations of a libertarian loony-tunes personality disorder that of course cannot be explained and has no roots in anything the United States government ever did. (Packer devotes a lot of virtual ink to convincing his presumed liberal readership that Snowden is a fringe right-winger.) No doubt McVeigh is understood as more extreme, but he is also less dangerous because he is more easily dismissed as a child-killing lunatic, and in any case is not available for interviews with Brian Williams.

Over the past year or so we’ve heard plenty of hysterical Fox News patriots claiming that Snowden, and perhaps Greenwald too, were essentially terrorists who were likely or certain to cause the deaths of Americans (somehow), and who should be subjected to CIA kidnapping or summary drone execution. Those options were probably never on the table for a pair of white men born in the United States, but we'll never know for sure. Michael Kinsley insists that we still live in a democracy, no matter how poorly it functions, and for the moment let’s give him the benefit of the doubt. So the rebels and renegades are under attack not from drones, spooks and imperial stormtroopers, but from so-called liberals who have forgotten the lessons of Justice Brandeis.

By Andrew O'Hehir

Andrew O'Hehir is executive editor of Salon.

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