Egyptians like to call their capital Um Al-Dunya, Mother of the World. Early Christians settled on the Nile, which later spurred the spread of Islamic civilization. Today, the city is one of the most densely populated on earth, presenting all the challenges facing the modern metropolis. That puts Cairo in good company: half the planet’s population now lives in cities, and by the year 2100 the figure could be as high as 80 percent. This is the Urban Century. Little wonder our editorial team was inspired to produce the Special Report on the Future of the City in this issue of the Cairo Review. In “The Arab Housing Paradox,” David Sims argues for harnessing the energy of informal settlements to create formal, legal neighborhoods in Cairo and cities throughout the Middle East. Robert Neuwirth makes another important case for empowering the urban poor in “Mad Cartographers.” Reporting on the destruction of a squatter district in Lagos, he suggests informal communities draw up maps as a way of declaring to the world, “We exist!”
Our survey of the urban future stretches around the globe. John Gallagher writes about the comeback of Detroit; Tom Miller explores the explosion of urban growth in China with a portrait of the Yangtze River boomtown of Chongqing; Harvey Molotch asks if the blanket of security over New York City since 9/11 is worth the price. Christian Déséglise and Delfina Lopez Freijido search for a model of sustainable urban development that questions material possessions as the measure of prosperity. Ian Douglas examines the fragile balance between urban man and nature. We offer an excerpt from Anthony M. Townsend’s new book, Smart Cities: Big Data, Civic Hackers, and the Quest for a New Utopia, just out from W.W. Norton & Company. We are honored to publish “Our Urban Dream,” an essay by Jaime Lerner, the former mayor of the Brazilian city of Curitiba.
The Cairo Review Interview is with Daniel Ellsberg, who in 1971 leaked the Top Secret study known as the Pentagon Papers in an effort to halt the Vietnam War; on a sunny afternoon in Los Angeles, he spoke to me about what the revelations by Edward Snowden and Chelsea Manning tell us about U.S. government abuse of power. In an essay on the same topic, Alexa O’Brien, who was in the Fort Meade courtroom or its media center every day, offers her reflections on justice in the Manning trial. Given the continuing international uproar over the Snowden and Manning revelations, you have not heard the end of the story.
A political prisoner freed. An affidavit documenting police abuse. An audience with lawmakers. When Egyptians rose up in 2011, human rights campaigner Heba Morayef dared to hope that such incremental accomplishments were giving way to freedom and democracy. But the dream didn’t last for long. As the Egypt director of Human Rights Watch sees it, conditions scarcely improved during interim military rule or under the administration of the first democratically elected president, Mohammed Morsi. Now, after the dramatic overthrow of Morsi and the bloody security crackdown on the Muslim Brotherhood group last summer, Morayef is taking a decidedly somber view. “This moment is infinitely depressing,” she told me over coffee in mid-September.
Morayef believes that the violent dispersal by security forces of Morsi supporters on August 14, after a six-week sit-in outside Cairo’s Rabaa Al-Adawiya mosque, is an ominous indicator of where Egypt may be headed. “While we fully recognize that security forces have a right to use lethal force, that right is not absolute,” she says. In the aftermath of Rabaa, indiscriminate arrests based on political affiliation and prolonged detentions without trial have become more common. Egypt’s decision-makers, she believes, “have made a decision to go for a full-blown security response to deal with the political crisis, and for that they want a blank check.”
To Morayef, part of the problem is the failure of the state as well as Egyptian society at large, in the midst of the post-revolution euphoria, to embrace important rights concepts such as proportionality and accountability. The country, she says, tends to see human rights as an abstract long-term goal, rather than something to be practiced every day.
Intense pressure to support the military crackdown, with more than a whiff of xenophobia in the air, has made the work of human rights advocates even more trying. In private, some Egyptians accuse human rights defenders of being Muslim Brotherhood supporters, or working as spies for the West. Human rights campaigners are shunned by Egyptian media, lest they counter the official narrative of the summer crackdown—that the Muslim Brotherhood is a terrorist organization and had lost the right to govern.
Morayef’s path to becoming a rights advocate began as an undergraduate at the American University in Cairo, where she studied international law and human rights. After earning a degree in political science, she worked at the United Nations Development Programme’s Human Rights Capacity Building Project in Cairo. Later, while getting a master’s degree from the London School of Economics and Political Science, she worked at Article 19, an organization defending freedom of expression, and at Amnesty International. As chief of Human Rights Watch’s Egypt office, she has compiled reports on everything from abuses by Egyptian security forces and election fraud to harassment of opposition activists. It is sometimes grim work that can include trips to the morgue—forays into the “little corners” of society, as she puts it.
It is also work that never ceases in Egypt these days. As we talked, Morayef’s smartphone beeped. The Egyptian coast guard, said an email message from a colleague, had opened fire on a boatload of Syrian refugees off the port of Alexandria; two people were killed. The news is disturbing, yet she stays calm, responding to more emails pouring in, and continuing our conversation. “You have to show some empathy, but you learn to do that a bit artificially,” she says. “You have to struggle to contain any emotional response.”
Morayef speaks about the challenges ahead; one of her greatest fears is that Egyptian society may begin accepting human rights abuses as something normal. “We’re back in damage control mode,” she says before going off to deal with the next human rights crisis.
Oriental Hall, etc.
Egypt’s changing of the guard in July brought a number of AUC alumni into the interim government formed by President Adly Mansour. Nabil Fahmy, who earned undergraduate and graduate degrees from the university, became foreign minister. To assume his post, Fahmy took a public service leave from AUC, where he is the founding dean of the School of Global Affairs and Public Policy(and editorial board chairman of the Cairo Review). Meanwhile, Ziad Bahaa El-Din became deputy prime minister and minister for planning and international cooperation; Mounir Fakhry Abdel Nour was tapped as minister of industry and foreign trade; Ahmed Galal is the new finance minister; and Abdel Aziz Fadel was named minister of civil aviation. In a September 28 address to the United Nations General Assembly, Fahmy told the international community that new presidential and parliamentary elections would be held by next spring. The ouster of President Mohammed Morsi last July, Fahmy added, “showed the world that the will of the people cannot be broken. That it can grant authority, just as it can remove it from the hands of those who abuse it.”
At a fashionable home in Brentwood in September, a few hundred people gathered at a function hosted by the American Civil Liberties Union of Southern California to honor Daniel Ellsberg. Hector Villagra, the group’s executive director, called the ACLU award recipient “a man who blew the whistle, who went public with the truth that the government didn’t want told, and in the end helped stop a war.”
Ellsberg, 82, is America’s most famous whistleblower. Or he was until the sensational leaks by Chelsea Manning, an army private sentenced to prison in August for providing thousands of secret diplomatic and military documents to WikiLeaks, and by Edward Snowden, a National Security Agency (NSA) contractor who fled to Russia in June after revealing the scale of domestic surveillance to the Guardian newspaper. In 1971, Ellsberg leaked the Pentagon Papers to the New York Times. He had been a Vietnam specialist as a defense department and state department official and later as a RAND Corporation analyst. His release of the Top Secret history of the Vietnam War fueled opposition to U.S. military involvement in Vietnam, and led to his indictment on theft and espionage charges. Ellsberg explained after turning himself in to authorities: “Wouldn’t you go to prison to help end this war?”
A federal judge eventually dismissed the case on grounds of government misconduct; the Nixon administration had carried out illegal surveillance of Ellsberg, including a break-in at his psychoanalyst’s office. Ever since, Ellsberg has been a prominent peace activist, advocate for civil liberties and press freedom, and author. He is the subject of the 2009 documentary film The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers.
Cairo Review Managing Editor Scott MacLeod interviewed Ellsberg in Los Angeles on September 29, 2013.
CAIRO REVIEW: Let’s get right to Edward Snowden. What’s the significance of what Snowden has revealed?
DANIEL ELLSBERG: He’s revealed that at least under the George W. Bush administration and continuing into the Barack Obama administration, these two administrations have laid the full technical infrastructure for a police state. We don’t have a police state, for sure, or this interview wouldn’t be taking place. I would probably be in detention. And we don’t have the process that the Stasi in East Germany embodied, which was not only as total surveillance of their population as they could achieve, but involved bringing people in constantly for questioning and possible detention, possible torture. We don’t have that here in this country. We do have at this point, Snowden has revealed, a surveillance apparatus that goes far beyond what the East German Stasi could even have imagined.
Remember, in the period let’s say [depicted] in the movie The Lives of Others, which shows the Stasi at work (and got an Academy Award some years ago), there was no email, there was no Internet, there were no chat logs, no digital credit card transactions, no banking done by this way, no faxes. So these channels of data didn’t even exist. And you didn’t have smartphones, and you didn’t have the GPS system, which enables NSA to know at any moment where a possessor of the smartphone is, within feet. So it amounts to what Admiral [John] Poindexter proposed years ago, under Bush, Total Information Awareness, TIA, which was supposedly voted down by Congress, defunded by Congress, but simply took up shop under a different name, apparently, in NSA, but has now gone far beyond what even he could have imagined.
It’s not only the collection of all this data, but the analysis of the correlation of it, largely by computer, correlating where you are and where I am at any given moment—they put us together very quickly. And, of course, the telephone calls, which have led to at least a couple of the prosecutions recently for whistleblowing that have been instituted by Obama. They found very quickly who had been calling the reporter whose byline appeared on the story, when they had met, when the reporter had been to the State Department and so forth. They knew total movements and total communication. Moreover, something that hasn’t come out yet in terms of documents, but which has been testified to by William Binney of NSA and Kirk Wiebe of NSA, Russell Tice of NSA, and Tom Drake—four major whistleblowers have all said that by no means is their collection limited to the so-called metadata, the subject headings and the data as to who was called and when and where. But that they are collecting the content of all of these calls.
And whereas, as recently as six or seven years ago, they could not store all that data, that problem has been solved. And now they can essentially store all of the content, even of audio and video, which takes more room, and text, and they are building a huge data center in Utah for the storage and analysis of all this material. So they have what a police state needs in the ability to identify suspects and identify troublemakers, and they also have the ability to identify every source of every journalist very quickly. So we have a country now, I’d say, where the problem of knowing who leaked a particular classified or embarrassing piece of information is technically very easy to solve at this point. It’s hard for me to imagine that a free press, an independent press and investigative journalism, can actually exist with the executive branch having knowledge of every source for every story, and being willing to prosecute, without having an Official Secrets Act of the British type, which has always, with one exception, been rejected by Congress as being unconstitutional, incompatible with the First Amendment. And yet Obama has been willing to prosecute now eight people, plus the almost surely sealed indictment of [WikiLeaks founder] Julian Assange, which is asserted by his lawyers, that exists in Virginia. That would be three times as many as all previous presidents have prosecuted altogether for leakers or whistleblowers. So you have both the ability to identify the defendant, the suspect, and the willingness to use the Espionage Act to prosecute, to put them behind bars.
Even without prosecution, the ability to identify means you’re able to use a great variety of administrative sanctions against the leaker. Even before the age of prosecution under Obama, the government could take away their clearance, take away their access, which really means destroying their career, not just their job. It probably means a great loss in income and thus children’s education and where they live. Great pressure on marriages, in fact. All of these things without prosecution. Tom Drake of NSA, for instance, basically lost all of his savings trying to defend himself against almost entirely spurious charges, which in the end were dismissed virtually contemptuously by the judge―but after years under indictment, where he lost all of his savings, mortgaged his house, put tremendous strain on his marriage. Having been a high official in NSA, he is now a consultant at the Genius Bar of an Apple store. Russell Tice, fired from NSA, has not been able to find a job at all and he was one of the high technical people in NSA, and he wasn’t prosecuted. Without investigative reporting, you don’t get congressional hearings, really. They’re mostly stimulated by the press in reality, even if you had an inclination by Congress to investigate, which we haven’t seen since 9/11 or before. So you have an executive branch without oversight, without checks and balances. I would say it’s the death of democracy, or at least the paralysis of democracy, and the question is whether we can possibly resuscitate it.
CAIRO REVIEW: You refer to the James Risen case?
DANIEL ELLSBERG: Yes, James Risen of the New York Times. He’s the reporter, and the leak was allegedly by Jeffrey Sterling, who was linked to Risen through telephone calls. They had telephone records. And James Rosen of Fox News was identified. He was the reporter, linked to Stephen Kim for a leak on Korea, and again that was entirely through telephone records. They could see that a particular report had come out, they knew that Rosen had telephoned Kim asking for information before that, they knew from the content that he was asking―not just the fact there was a phone call―and then they had Kim calling almost immediately after the report had come to him. Clearly the circumstantial evidence here is very powerful, and probably they had the content of the calls, but haven’t yet admitted that.
CAIRO REVIEW: People assumed for a long time that the government had the capability to store lots of data on people, so what specifically has Snowden revealed?
DANIEL ELLSBERG: Documents. People have always sort of assumed that we were being listened to. But the difference between assuming it and knowing it is quite significant. It’s very inconvenient to act as if you are being listened to at all times, to encrypt everything, to use spy trade to try to protect your sources and so forth. It’s a lot of trouble. That’s what NSA relies on, people just not taking the trouble. Remember, the ‘knowing’ has always gone in the face of denials, very explicit denials, by the president and by the heads of intelligence, with [Director of National Intelligence James] Clapper, just this year, saying, “We do not collect data on millions of citizens,” when in fact the answer is, “Yes, we do collect data on millions, hundreds of millions in fact.” A direct lie to the intelligence committee. And going back a ways, with Bush saying, “We do not listen in on communications with Americans without a warrant. Period. As the Fourth Amendment requires.” He said that on television. False. That was a lie. And in that case, the Congress was not able to get documents, or real testimony from anybody in the government. They demanded the testimony and people just said, “No, we won’t give it to you.” And in that case, I don’t think any documents actually ever did surface.
But in the case of Snowden now, the documents are just there. They can’t deny it. In the case of the Pentagon Papers, you had four thousand pages that I gave to the newspapers, plus several thousand that I gave only to the Senate. There you had documents, and a lot of documents, over a long period of time, a very comprehensive record, as Snowden has provided. And that makes a difference. For forty years, I’ve been putting out publicly that I wish someone would put out a lot of documents that could not be dismissed on the grounds that, “Well, that’s one document, but we reversed that the next day,” or, “That was the attitude of one agency, but the president decided otherwise.” Or, “That’s old stuff,” and so forth. [In the Pentagon Papers] you had a record of all the different agencies weighing in, the pros and cons, the controversy going on, and finally a decision being made. It made it very clear that the public had been lied to, and that Congress had been lied to, systematically by a series of presidents over a period of years, as is clearly true now coming back to the NSA issue. It’s very hard for people to really believe that a president is lying to them—lying, not just being cute or misleading a little bit, not telling the whole truth, but actually lying—unless they have a document.
CAIRO REVIEW: The Pentagon Papers had that effect, you think?
DANIEL ELLSBERG: I failed in what I basically hoped to do with the Pentagon Papers, to get people to understand that the same pattern of lying about the Vietnam War that I was documenting for four different presidents, Truman, Eisenhower, Kennedy and Johnson, was being pursued by a fifth president, the then-current President Richard Nixon. And I just hoped that people would extrapolate there a little, and say, “Well, all these other presidents did it, two different parties, same situation, they all deceived about what they were planning to do, what they were doing, what the costs would be and how the war was succeeding. Nixon’s doing the same.” But I didn’t have documents on that. I couldn’t get people to believe that, even people like Sy Hersh or Norman Mailer or people I put it to who are generally regarded as very sophisticated, very cynical even. I remember saying to Norman Mailer at the Miami Democratic Convention in 1972, having failed to convince him that Hanoi was likely to be bombed by the end of the year, that that was part of the pattern of the policy. He said he just couldn’t believe that the plan was that coherent. I said, “You know, it isn’t as though they would have hoped to do these things.” They didn’t want to do them. They wanted to win without doing them—mining Haiphong, renewing the bombing of North Vietnam, and so forth—but I could predict that they would not succeed in their aims with the earlier measures, and I predicted on the basis of the Pentagon Papers that they would carry out what they’ve planned. Plans exist. He couldn’t believe it. I remember standing under an awning in the rain waiting for a taxi with Mailer and I turned to him and I said, “How would you feel if you believed what I believe?” And he said, “I think I’d go mad.” And I said, “Well, maybe I’ve gone mad.” But by the end of the year, we were bombing Hanoi, after hearing “peace is at hand” from Henry Kissinger just before the election. And then the heaviest bombing in human history over a two-week period. That wasn’t very gratifying to me to have that prediction confirmed. What I’d been doing since ’69—and this was ’72—was trying to avert that, and I’d failed. But I’d failed in considerable part because without documents, people just could not believe that this president, even a president they had not voted for, would simply be carrying out a secret foreign policy and getting away with it.
CAIRO REVIEW: One of the things Snowden has said is that his biggest fear is that what he’s done won’t have any impact.
DANIEL ELLSBERG: Chelsea Manning said exactly the same thing to Adrian Lamo, the person sheunfortunately confided in. She said, precisely, that her greatest fear was that nothing would change. Her hope was that there would be informed discussion, that there would be debate and change in policy worldwide, and not just in the U.S. But again, would anything change as a result? Now, Manning had very little effect in this country, I would say, in terms of policy, though a very big effect abroad. The revelation that the U.S government knew very thoroughly of the corruption by [Zine El-Abidine] Ben Ali in Tunisia persuaded resisters in Tunisia to believe, when they read that in Le Mondethrough WikiLeaks, that if they revolted, maybe the U.S. with this knowledge being public would not feel open to backing Ben Ali. They might be embarrassed to be backing this admittedly corrupt and tyrannous dictator. There were stories around the time that Mohammed Bouazizi burned himself—another critical element there by one person—that this is the first “WikiLeaks Revolution.” The two were both critical: Bouazizi and Chelsea Manning’s revelations through WikiLeaks. There grew a website called TuniLeaks to reprint the WikiLeaks revelations on the Internet when the regime tried to cut it off. Without the discussion there, Bouazizi’s burning himself to death I think would not have had the resonance that it did have in Tunis—that “this is enough, this is it, let’s react to this.” Then, within weeks, that led to the Cairo occupation in Tahrir Square, and again in a surprisingly short time non-violently that regime was overthrown. Chelsea Manning could hardly have been unhappy. I don’t know how much she knew about that in prison, but she knew some. We did hear that she was aware. But it didn’t have that effect in the U.S.
CAIRO REVIEW: The effect of Snowden?
DANIEL ELLSBERG: Snowden has had as much discussion and reaction in Congress as you could hope for at this stage, and may or may not lead to major change. That remains to be seen. I’d say the immediate effect was far more in terms of Congress than the Pentagon Papers had. The Pentagon Papers was seen as very interesting, but history. I think the major difference between the impact here of Snowden and Manning is that Manning was revealing what our government was doing to ‘them,’ ‘others,’ not ‘us,’ not ‘we the Americans,’ but to foreigners far away. And Americans do not and did not rise to that as much as they would to, let’s say, American casualties, or something being done to us. Snowden, on the other hand, was revealing what the government, our own government, was doing to us here at home, and I think that made a very big difference. I don’t think this is a peculiar nature of Americans. I think it’s very human, that all countries pretty much react that way. That is, unfortunately, very true of our species. Manning said to Lamo, “If there is no discussion and no debate, I will officially despair of our species.” At first glance, that would seem to most people a very grandiose statement. Very sophomoric, you might say. Not to me.
CAIRO REVIEW: Why?
DANIEL ELLSBERG: Because I’ve seen this as a species problem for quite awhile, and the lack of concern about the impact of our own actions on people who are defined as ‘other,’ not ‘us,’ is a species characteristic that in the nuclear era, and in the era of climate change also, forecasts our self-extinction. And not only our self-extinction, but with us most other large animals. All of which could be annihilated today, as we speak, by a false alarm that set off the two doomsday machines in Russia and the U.S. Each of which is able to create smoke from burning cities that would reduce sunlight and create a nuclear famine. Nuclear winter. And if not winter, nevertheless kill harvests for a period of years, perhaps a decade. And we would all go.
My principal concern for many years, going back to ’58, that’s almost sixty years now, has been this problem: the possibilities of nuclear annihilation. I was working on nuclear war plans as early as ’59, ’60 and ’61, and I’m very conscious of what I just told you: that the land-based missiles and the submarine missiles that we have right now are capable of killing everybody and the animals with us, down to the level perhaps of bacteria and insects. That I didn’t know until the ’80s, twenty years after I’d worked on the war plans, with the nuclear winter studies that came along. And yet, those studies, which have now been confirmed in the last five and ten years very thoroughly—the situation being even worse than was conjectured or asserted in 1982 and 1983—have been essentially ignored by the public as if the nuclear problem had gone away. Yet, the capability of doing this, with no conceivable strategic or national rationale for it, is still in place. ‘Ready to go.’ ‘On alert.’ Efforts to get it off alert have all failed.
What I did become aware of in 1961, twenty years before the nuclear winter studies, was that the joint chiefs of staff told the president, in answer to a question I drafted for the White House, that the effect of the U.S. conducting its plans for general nuclear war would be to kill some 600 million people. Six hundred million people. Including not only some 325 million in the then-Soviet Union and China, but 100 million of our allies in Western Europe, 100 million in the “captive nations” in Eastern Europe, and 100 million in neighboring countries to the Soviet Union, like Afghanistan, Japan, India, Austria, neutral countries, Finland. Which revealed to me then that the people I was working with were capable of being, you know, totally oblivious or unconcerned about the prospective impact of their planning, our planning, on non-Americans.
That was a time, by the way, when an attack might have been carried out with no loss at all that you could see in the short run in the U.S. Because in ’61, the Soviet Union had four ICBMs that could reach us, and perhaps 150 or so long-range bombers, all of which we could destroy very easily in a first strike. And a year later in the Cuban Missile Crisis, the joint chiefs were pressing Kennedy to take actions that would have triggered this war: immediate attack on the missiles in Cuba, with the understanding that that could easily quickly escalate to a U.S. first strike. So we had joint chiefs who had those values, who were willing to do that. That told me something about the human species. I did not assume that Americans were uniquely vicious and brutal. I didn’t doubt that there were plans in Russia as they acquired nuclear weapons that were very similar, and would be in other countries. What are French and English nuclear weapons targeted on? Only cities. They’ve said that explicitly. They don’t have as many. They’ve got to make the best use of them they can, and that means cities. Where are Israel’s weapons targeted? I saw recently an estimate that Israel had eighty nuclear warheads. I looked at that and said, eighty? That’s impossible. Mordechai Vanunu back in 1985 was talking about 300 and possibly 600 warheads. Have they been getting rid of them? Then I looked at the fine print and I saw those are not including tactical nuclear weapons, which are mostly Hiroshima-size or Nagasaki-size. Where are they for, exactly? The whole world should be interested in what they have in mind. Just as they should be interested in what the U.S. has in mind.
I got off on this because we’re talking here about secrecy, having concealed this from the world. Something that in fact the whole world has an interest in knowing. India and Pakistan. Pakistan now has more than a hundred fission-type weapons, and India has more than fifty. Calculations have been made scientifically that with one hundred Hiroshima bombs you wouldn’t get nuclear winter on cities from the smoke. You would get a diminution of the sun’s energy reaching the earth of about 7 percent, which would be enough to increase drought, kill off harvests, and in various places sufficient to kill about 900 million people who are at the marginal levels of nutrition. It’s a calculation done by the Physicians for Social Responsibility. That suggests to me that the entire world has an interest in preventing that, and to start with, asking them what they have in mind with this, and how dare they propose to inflict this on the people of the world. That is all the more so with the larger arsenals, above all of the U.S. and Russia.
And all of it is behind a veil of secrecy. The figure I gave you of 600 million deaths has never appeared in any official government statement in the last fifty years. There is no estimate of who would be killed by an ‘American option’ in any of our nuclear war plans. When you see estimates, they nearly all come from me, actually. I’ve traced the footnotes, and they come from the fact that I drafted that question and I held in my hand a Top Secret answer from the joint chiefs of staff, but that remains Top Secret including from Congress.
Coming back now to this surveillance aspect, I would like to see a Snowden at the kind of level that I was in ’61, with access to the war plans, put out this kind of classified data, with documents, on a large scale. I would like to see that in every nuclear weapons state. Had there been a Snowden or a Manning in India before their nuclear weapons tests, would we have had an Indian and Pakistani to tell us that they were preparing a test? Had that been revealed, there’s at least a possibility that there would have been some public discussion and some international pressure. As it was, it was a fait accompli. In every nuclear weapons state that has conducted a test, the public of that nation has fallen in love with their new nuclear weapon very quickly, even when there was a lot of skepticism and a lot of resistance to it beforehand. In no single case has the decision been made to acquire nuclear weapons by the entire cabinet, let alone the parliament, other legislature or public discussion beforehand. Not in one case. Israel is a good example. There was strong opposition to that within the Israeli cabinet. I’m saying the situation might have been different had somebody inside that process, and there would be thousands and thousands of people in the process, decided the world should know this, or the rest of my countrymen should know this. That’s what Vanunu did, for which he was kidnapped, drugged, court-martialed, and put eighteen years in prison, eleven and a half in solitary confinement. And he revealed not just that they had nuclear weapons, which virtually everybody assumed at that point, but that the scale was much larger than the CIA or anybody else had imagined.
There’s a case, by the way, I would say of a whistleblower who spent the eighteen years in prison with no perceptible effect on policy, in Israel or anywhere else, that you can see. I went over to Israel several times in his defense. He’s very clear that he did not regret what he had done. In fact, he was forbidden to talk to reporters, but he continued to do that, for which he was put back in prison, after the eighteen years. So he’s not in regret. I believe that Chelsea Manning will not regret what she did, or Snowden, whatever comes of it. I identify very much with them. As Manning said to Lamo, she didn’t mind so much the prospect of prison for life or even being executed. She said what she did mind was the prospect that her face would be plastered all over the world as a boy: because she already thought of herself in gender terms as a woman. And she was willing to go to prison. When I read that I thought, “I haven’t heard that for forty years.” That’s the way I felt in ’69. And in ’71, I expected to go to prison for life, for a chance that it might shorten the war. And that seemed to me, and I’m sure to them, a very natural, not very hard, choice to make, if you had a chance, a small chance, of having an effect on these very large events. So I felt I had waited forty years for someone who would do what these two did, namely put out so much material, classified, that it had a chance of actually affecting policy and making a change, but at the same time expose them to a near certainty of being identified and thus being prosecuted. When I did it, I wasn’t aware that no one had ever been prosecuted for putting out classified material before me. Did you know that?
CAIRO REVIEW: No.
DANIEL ELLSBERG: Very few people know. Most countries do have a law like the British Official Secrets Act, which criminalizes any revelation of government protected information, whatever the intention and whatever the effects, whatever the motives. All irrelevant. It’s simply criminal to do that. We don’t have such a law, but there are words in the Espionage Act that do read as though that does apply. The Espionage Act was intended from 1917 onward for espionage, and was used a lot against spies who secretly gave information to help a foreign power, or hurt the United States, or for money. It had never been used against a leak to the American public, because it was understood to be unconstitutional if used in that way. That that would be a violation of the First Amendment. My case was the first experiment to see if they could get that past the Supreme Court. And if my case had not been dismissed for government misconduct, it probably would have been dismissed by the Supreme Court as unconstitutional, according to major legal scholars of the day like Melville Nimmer. That’s not so true today. The Constitution is the same but the court is different, very different. And the interpretation of the Constitution has evolved over the last forty years in ways that do not favor the First Amendment.
CAIRO REVIEW: What signs do you see that Manning and Snowden may actually effect change? You mentioned the uproar in Congress over the NSA revelations.
DANIEL ELLSBERG: There have been two. At first, there didn’t seem to be any movement for change in this country as a result of Manning’s revelations, which were about Iraq and Afghanistan: wars which the president claimed to be in the process of ending. In the case of Snowden, there have actually been introduced a number of bills that would rein in the NSA from their blanket dragnet surveillance of all Americans and all their digital communications. There is the Amash-Conyers bill, which would deny funds to the NSA for blanket surveillance of all Americans. That bill got a very surprising amount of support. It almost succeeded right away after the Snowden revelations. Then Obama has been led to describe a series of reforms, almost all of which are clearly sham reforms, with no teeth in them. Such as putting an adversary in the proceedings of FISA [Foreign Intelligence Surveillance Court] who would argue for openness, taking account of the fact that the FISA court right now consists of judges all of whom have been selected by one justice of the Supreme Court, Justice Roberts. Did you happen to know that? Like himself, they’re nearly all Republicans appointed by a Republican president. Which may have something to do with the fact that they have been a pure rubber-stamp for the intelligence community. Out of some thirty thousand requests for warrants, they have denied eleven. So it’s a pure formality to have the existence of that court. If they put an adversary on the court, a devil’s advocate of some sort, they’ll still get only the information the government gives them. The court, as much as a rubber stamp as it is, has complained that the NSA has continuously lied to them, deceived them and withheld information from them. The justice of that court said we have lost confidence in the NSA. That won’t be improved by putting one more spokesperson on that court.
CAIRO REVIEW: That seems like a limited impact, then.
DANIEL ELLSBERG: The public has risen to this issue in terms of polls, with 60 percent of younger people saying that Snowden did the right thing, this guy who already is facing federal felony counts for what he did. The question is, will the public press Congress enough to put some spine in them for them to demand information from NSA and to act on it, and, for example, not allow officials to lie to them under oath with no consequence, which they do regularly, as they did with Clapper. Will they demand true testimony on these matters? Will they refuse to be content with hearing from government officials, “We’re not going to give you this information. State secret. You can’t have it.” Which is the way [former Attorney General Alberto] Gonzales talked when the issue came up when the Times first revealed the widespread surveillance.
CAIRO REVIEW: The warrantless surveillance?
DANIEL ELLSBERG: The telephone surveillance revealed in 2005, the Times having kept that secret for a year at the request of the White House until it was about to come out in a book by their correspondent, James Risen. The Times finally revealed this warrantless wiretapping that was going on, which at the time was clearly illegal under a number of domestic laws, as well as unconstitutional under the Fourth Amendment. So you had in 2005 a four-year record of massive criminality by the executive branch under the president. Not one indictment followed from that, nor did the practice change. They just got opinions within the Office of Legal Counsel that maybe it wasn’t so illegal, which was ridiculous. Then they got Congress to legalize it. That doesn’t make it constitutional under the Fourth Amendment. That’s not how we amend the Constitution. A majority in Congress can’t just wipe out an amendment, but they purport to have done that, so now it’s legal.
In fact, all of the criminal acts that were taken against me by President Nixon, which led to his facing impeachment and his resignation, and incidentally to the dropping of charges in my case, all of those acts are now purportedly legal whether they’re constitutional or not. I was overheard on warrantless wiretaps. A White House team of CIA assets burglarized my former psychoanalyst’s office for information with which to blackmail me. You couldn’t get a clearer contradiction of the Fourth Amendment than that. The CIA was used against me, an American citizen, in a variety of ways, which was then illegal against their charter. And eventually a dozen CIA assets were brought up from Miami to Washington, DC, with orders “to incapacitate Daniel Ellsberg totally.” I asked a prosecutor, “What does that mean? Kill me?” And he said to me, “Well, the words were ‘to incapacitate you totally,’ but you have to understand, these guys were all CIA assets from the Bay of Pigs, and never use the word ‘kill.’” He thought they were meant to kill me, and that was from the White House. The Patriot Act makes the use of the CIA in domestic matters legal now. The FISA amendment act makes the warrantless wiretaps legal. The CIA has become in effect a domestic police agency along with the FBI. And even the assassination effort, Congress has not passed a law legalizing that, but President Obama virtually boasts—he leaks, to put it in another way, he leaks to the New York Times—that on Tuesdays he picks out people to kill, including Americans, by drones or assassination squads. At least two have been killed, others are on the list: Anwar Al-Awlaki and his sixteen-year-old son, both American citizens, killed by drone attacks. No challenge to this by Congress or anybody else.
In effect, protections, liberties and guarantees of due process, which go back to the Magna Carta 800 years ago, have just been swept away in part by legislative process. In every case preceded by secret faits accomplis by the executive branch, then legalized by Congress or simply not challenged. And now we have Snowden showing that the surveillance is not just happening on a large scale, it happens on a total scale, every American is subject to this, every communication. Russell Tice has made the point that in addition to this dragnet surveillance, when he was in NSA he was involved in and knew personally of a great deal of targeted surveillance, targeting individuals including the heads of and staff members and the members of the intelligence committees, the armed services committees—everyone who had any bearing on the budget or investigation of NSA, journalists, news agencies like Associated Press and the others, and justices of the Supreme Court. So a government which was founded on the principle of checks and balances among three separate independent branches of government, plus a Fourth Estate, the press, protected by the First Amendment, has been replaced basically by a one-branch government, the executive branch, that knows every detail of the private life and the private communications of every member and staff member, home and office, of the legislative branch, the judiciary and the press.
The idea that these can be independent in their oversight or can have any real oversight function is absurd under those conditions. And I would say that the basic conditions of democracy that were built into our Constitution and the Bill of Rights have essentially been subverted, have been eroded. Mainly since 9/11 and with the acceptance of most of the population.
CAIRO REVIEW: The Snowden impact does not seem too promising then.
DANIEL ELLSBERG: There are two very promising effects. One, the bills to restrict the NSA are now proliferating in Congress. We’ll see whether they reach majority and whether they get obeyed. But at least there is resistance here because of popular concern. The biggest effect is the fact that the president was facing loss of his request for support to attack Syria. He almost certainly would have lost by a huge margin in the House both among Republicans and Democrats. No parliament has ever denied the funds for an imminent war. It was so obvious that they were going to do that in the House, in contrast to Vietnam, Iraq, Libya, the drone war in Pakistan. The House wasn’t going to go along and there was only one reason, and that was public opinion. The House was in recess and they were being approached by their constituents who buttonholed them and said more emphatically than these congressmen had ever heard before, “Do not attack Syria.” And the reason was not a concern about Syrians per se but because of certainty that the president’s assurances, and the secretary of state’s assurances, that there would be no American casualties, no American boots on the ground, were ridiculous. And the public said, “We don’t believe that.” The public didn’t address the question, “Are they lying?” It was, “We don’t care what you think, the fact is that if we start throwing cruise missiles in there, we are going to be involved on one side of a very complicated civil war that’s going on and we will be led to back up that commitment by troops and in a quagmire, a hopeless quagmire.”
CAIRO REVIEW: Snowden’s revelations caused the public to be more skeptical of presidential authority?
DANIEL ELLSBERG: I’d say yes. They’re so conscious right now of having been lied to, and Iraq and Afghanistan are sufficiently fresh in their memory, as to keep us out of Syria if the public has a voice in it. And, for once, the public did have a voice. Amazingly enough, [Robert] Gates and [Leon] Panetta, two of Obama’s defense secretaries, both in a panel just last week, criticized their former boss very strongly. For what? That he went to Congress. That he obeyed the Constitution, which gives the power, the decision on war, exclusively to Congress—although various administrations have claimed that that language is ambiguous and it just has to do with declaring war which is just a formality, and that the decision is really in the hands of the president. That argument, made by John Yoo, the [former] legal counsel in the Office of Legal Counsel, is absurd. It’s ridiculous. In fact, it’s very clear in the discussions of the Constitution that the way it was interpreted, it was the intention of the [constitutional] congress to put that decision exclusively in the hands of Congress, not for them to be consulted, and not to share responsibility, but to have that responsibility. That was an invention of the Founders, based on their reading of two thousand years of history, going back to the Greeks and Romans, that you should not have the power of war and peace in the hands of one man. That it should be in the hands of a representative body. So here we have the president observing that for the first time in years. People actually cared strongly about it and they got it.
CAIRO REVIEW: Curious thing, Obama is a constitutional lawyer.
DANIEL ELLSBERG: He’s a constitutional lawyer, as is John Yoo, and I think he’s pretty much the same kind.
CAIRO REVIEW: You voted for Obama, right?
DANIEL ELLSBERG: Strictly speaking, I didn’t vote for him this time. I live in California, a solid blue state; I didn’t have any reason to vote for him. I did the first time. But both times I did urge people in swing states to vote for Obama, and I got a lot of flak for that from various people on the left.
CAIRO REVIEW: What explains Obama’s role in the rollbacks you’ve described? What explains his drone assassinations and so on?
DANIEL ELLSBERG: I don’t have the explanation. I didn’t expect him to eschew any of the powers that had been bequeathed to him by George W. Bush because I don’t know of any president who has ever done that, who said, “I don’t want that much information, I don’t want that much power. That’s not what the presidency is supposed to do.” If anybody sounded as though he might do that, it was Obama. I still didn’t expect that he would go beyond Bush, as he has done in many ways. Why the eight indictments [of government personnel for leaking classified information]? Why more use of the state secret’s privilege? More opacity, I would say, than Bush. More secretive than Bush, on the whole. He enormously extended the drone campaign, assassination campaign, in a country with which the U.S. is nominally not at war, Pakistan. It is nominally our ally, a sovereign state, which officially at least complains that their sovereignty is being invaded. Here is a country that is, I would say, in the most dangerous situation in the world, with a very unstable government, with Islamic fundamentalists wanting control of the nuclear arsenal and with a record of having shared their nuclear technology with other countries in the past. To take actions which predictably had the effect of making the United States the most hated country in the world by Pakistanis seems to me—I could say imprudent, but that would be laughably euphemistic—seems wildly reckless, irresponsible and dangerous. The only basis that I can give for having urged people to vote for him in swing states and not regretting that, is that I believe [Mitt] Romney would be even worse. Or [John] McCain. If McCain or Romney were president right now, I believe we would have been at war with Iran for some time and we would be heavily involved in war with Syria. And so with all I’ve said here about Obama, I’m happy every day that Romney is not president. That’s the state we’re in.
CAIRO REVIEW: Do you regard Snowden and Manning as American heroes for what they’ve done?
DANIEL ELLSBERG: They’re heroes to me. I identify with them because of their willingness to pay a personal price in order to inform their fellow citizens and the world of information that the public needed in order to change a disastrous policy. It ought to be normal, I would say natural, for people to do that. It doesn’t seem to be that way statistically. It seems to be very, very hard, I mean almost impossible, for people to confront paying a personal price for the benefit of ‘others’ not ‘us.’ People will readily sacrifice their lives on the battlefield for their country, supposedly, if they’re convinced that it’s for their country, often mistakenly. People will even sacrifice their careers at the orders of their boss. But to do it against the boss, to really lose their job, seems to be very, very hard. The price of that is ostracism and disrespect and being called very bad names like traitor, and people will put up with any abuse rather than suffer those names. Most people.
CAIRO REVIEW: In leaking the Pentagon Papers, what was your thinking at that time?
DANIEL ELLSBERG: I was a Cold Warrior in the late ’50s, a Cold War liberal, a Cold War Democrat. I felt myself very liberal in domestic matters, say, on racial questions, or unions. In fact, I planned to be a union organizer or a union economist. At Harvard, I studied labor economics. But I’d become very convinced by the black-and-white vision of the Cold War as opposing a virtually Hitler-like opponent, just as I had been an enthusiastic youngster in World War II. I had the usual Cold War attitudes. The president had more secret information than I did and I assumed had our best interests at heart and shared the values of democracy. I was about to get out of the Marine Corps in June 1956, after two years. And when my battalion was scheduled to go to the Mediterranean with the 6th Fleet for six months, the Alsops [newspaper columnists Joseph and Stewart] were predicting war, especially when Nasser nationalized the Suez Canal. I couldn’t stand the thought that I would be back at Harvard while my battalion would be in combat.
So I extended for a year, on the possibility that there would be combat. In the course of that year, we were steaming toward the southeast corner of the Mediterranean, with the British and French and the Israelis working their way up the canal, not knowing whether we would be attacking or participating against Israel or Egypt. As the assistant operations officer in charge of training, I was asked to do a briefing for the flotilla of ships we had, five or six ships, on the merits of the crisis. I went to the ship’s library and looked up Britannica and several encyclopedias and I read Arthur Koestler’s book on the Middle East and a number of other books, and came to the startling conclusion that Nasser had had a perfect right to nationalize the canal, and that he was right in saying that the British had been exploiting Egypt with their operation of it all this time. And [it] appears that the British and French are waging aggression, our closest allies here, and Israel, too. I was at that time almost the only Jewish infantry officer on that ship. I was impressed that Eisenhower, who I had not voted for, was denouncing our closest allies as committing aggression. I was proud of that, as an American. I thought, that’s why I joined the Marine Corps, to fight against aggression.
The idea was not that we would be invading but that we might have to evacuate all the [American] citizens from one country or the other, from Egypt or Israel, and that it might have to be an opposed landing, because the country involved might want to keep American citizens there as kind of hostages, in effect. We were sent to Alexandria, and there was a question whether they would really let us have the evacuees. At one point before the people came aboard, my boss, an operations officer, Major See, said to me, “It may be that they’re going to intern us, that they will not allow us to take people off.” I said, “What do you mean, ‘intern us’?” He said, “Well, we’ll have to go ashore, and they’ll put us in an internment camp.” I said, “Are you kidding? This is a reinforced Marine battalion. Are you saying that I’m going to be interned by Egyptians?” I apologize here for American chauvinism. I said, “I’m not going to be interned,” and he looked at me very sternly and said, “That means you, Lieutenant Ellsberg. If we’re interned, you will be interned.” I thought to myself, “Well, f— that.” So I looked around the ship, found a rowboat that could be lowered by hand, I got maps, and I drew my .45 from the ship’s armory. In my mind I picked out a couple people to go with me in this boat. We were going to go, I figured, before we would let ourselves be interned.
My reason for telling that story is that that was very much in my mind when I was looking at command and control problems of nuclear weapons a few years later at the RAND Corporation. I got very interested in the question: could a highly conscientious, patriotic and motivated officer, who felt that the time had come to use a nuclear weapon, and the communications simply had broken down, launch a nuclear weapon on his own initiative? What I discovered in going all over the Pacific for the commander-in-chief Pacific was that in every case rules that were meant to keep a single individual from launching nuclear weapons were consciously being bypassed and overruled to make sure that if communications from Washington failed somehow, which happened part of every day in the Pacific, that they would be able to use nuclear weapons. And the supposed two-man rule, which was to keep any one individual ever from making that decision on his own, was universally ignored in the field. As I expected from my own experience—and this not by rogues or madmen, but by people who wanted to carry out their patriotic duty.
CAIRO REVIEW: Was it this individualism that led to your decision to leak the Pentagon Papers?
DANIEL ELLSBERG: Interesting question, but I wouldn’t say that.
CAIRO REVIEW: How do you explain it?
DANIEL ELLSBERG: I had been to Vietnam in ’61 and understood it to be a real losing situation. We had only advisors there then, less than a thousand. But I was convinced by the people there that President [Ngo Dinh] Diem was a total loser. That he had no popular base whatever. He was, after all, a Catholic president in a Buddhist country, which very few Americans noticed as anomalous. You know, how did that come about? Could it be as a result of foreign influence? Because normally Buddhists wouldn’t vote for a Catholic president in Vietnam. But in this case, they’d voted like 102 percent for him in the Saigon area. So there was no way that you could succeed in Vietnam unless with U.S. troops, and they wouldn’t succeed either, any more than the French had. That was the impression I got in ’61. But when I went into the government in ’64, having worked on nuclear war plans in between, President Johnson decided to go into Vietnam. It didn’t seem like a good idea to me. It seemed like a bad idea. But he was the president, and the point was to do as well as we could under the circumstances, see what we could do over there.
So I went over there with General [Edward] Lansdale in the hope that his insight into insurgency and counter-insurgency would allow us to make something of this very unpromising situation. What I learned in two years was that there was no progress being made, and there wasn’t any progress going to be made. That our prospects there were no better than they had been for the French or the Chinese, to go far back. My close Vietnamese friend, Tran Ngọc Châu, told me, “You know, you have to understand we are a country that thinks of ourselves as having defeated the Chinese, although it took us a thousand years.” That introduced me to the idea that they were on a different time scale here from what we were used to in the United States, and that we were not going to defeat these people. Period.
I came back with hopes of getting us out of Vietnam and working within the government and consulting with people like Vice President Humphrey and [Robert] McNamara, the secretary of defense, the number two man in the state department, and Walt Rostow in the White House, that there was not going to be any progress, that we were killing people to no end and losing people, and that we should stop doing that. But that was not the president’s choice. Then I was to participate in the Pentagon Papers study, as someone who had worked on escalation in Vietnam in ’64 and ’65. Eventually in ’67, back at the RAND Corporation, I read the entire study. I had the whole study I was given for research. I was the only person doing research for government on lessons of Vietnam and being paid to do that. The last thing I read was the earliest part of the study, ’45 to ’54, which I left to the end on the assumption that it was the least relevant for me. I realized from reading about that early period that it had been an American war from the earliest days, in that we were encouraging and supporting the French in pursuing their intent to re-conquer a former colony. And just as I discovered in ’56 that our allies were involved in fighting their way back into a former colony in Egypt, and that that was illegitimate by any American standards, I discovered that we had supported the French to the extent of 80 percent of their costs. By 1950, and for the next four years of the war, we were pressing the French to continue, lest we lose, lest an American president lose, Vietnam, the way Truman was accused of having ‘lost’ China. We had been founded in a national war of liberation from the world’s greatest empire. So the war to me had been illegitimate from a U.S. point of view not just from ’61, or ’65, or ’54, but from ’45 and ’46, from the very beginning. And that meant to me that every person killed in Vietnam in that war was a victim of unjustified homicide, illegitimate homicide, which I read as murder. And that was something that I should not be part of, even another week, and I should do what I could to prevent it, to stop it. Whereas for the two years previous to that, I had done everything I could inside the government to stop it, I’d stopped short of saying anything that showed the president to have lied, which I knew by that time and was rampant, or that we were acting illegitimately. I wanted us to stop as gracefully with as little loss of face as possible, as were a lot of other people interested in doing inside the government. Virtually everybody I knew knew that this was a hopeless, useless slaughter. But they weren’t doing anything that would risk their career or their promise to keep secrets or their loyalty to their president.
It could have been argued that that was disloyal to their oath to the Constitution. But none of us thought of that, including me. We thought of ourselves as working for the president. And just like for Panetta and Gates, we thought it’s for the president to decide whether we’re at war or not, which is, as I say, a violation of our oath, which is not to the president and it is not to secrecy, it is to support and defend the Constitution against all enemies foreign and domestic. And when the president is violating the Constitution, your oath should oblige you to reveal that and oppose that, but no one sees that. I can’t say that I saw it at that time. What I did see was that the war was going to go on, and that to trust the president was not just naïve, it was irresponsible. Because I had read a study now of four presidents in a row—and I knew that a fifth was doing the same—who had consistently made the wrong decision to escalate in Vietnam, to involve ourselves. They had acted—from a national point of view—stupidly, and lied about it every day of the week and every year. And that this wasn’t going to change unless Congress could be brought to use their power to cut off the funding for it. Ultimately, I realized Congress was not going to do that unless the public caused them to do it.
I went through two more stages. I decided to give the study to Congress in ’69, in the hopes that it would lead to hearings. But Senator [J. William] Fulbright, who could have put it out and promised me he would put it out, as chairman of the Senate Foreign Relations Committee, quickly concluded that he would let me put it out and take the risk of the certainty of going to prison. He had no risk of going to prison. But he did risk being denied classified material from the Pentagon and being denied his role of being in charge of foreign military aid. So rather than risk that loss of status and power, he didn’t put it out. After two years, I gave it to the New York Times. Then, when they were enjoined, for the first time in our history, in violation of the First Amendment, I gave it to seventeen other newspapers plus theWashington Post, nineteen in all. And the Supreme Court finally ruled that they were legally able to print this material, which had come to them even though it was classified, but I was prosecuted, facing 115 years in prison. That was no surprise to me because it took another year to realize, to discover by research, that there had after all never been another prosecution like that. And for the reason that it was unconstitutional to use the Espionage Act this way.
As I say, it’s still unconstitutional, properly interpreted. But Obama, the constitutional scholar, like John Yoo, is acting on the assumption that the president when acting as commander-in-chief in a time of emergency is constrained by nothing. Not the Constitution. Not treaties. Not laws. Not Congress. Not public opinion. Not allied opinion. Nothing. He is an absolute monarch. That’s the explicit doctrine of John Yoo, or David Addington, [former Vice President Dick] Cheney’s counselor, or Cheney, or probably Bush. And I would say Obama has inherited that attitude.
CAIRO REVIEW: How do you respond to the argument that it is not the right of individuals who are not elected to make the decision to leak classified information that can change history?
DANIEL ELLSBERG: It certainly involved my breaking my promise to keep these secrets. I made that promise many times, as did Snowden and Manning. But there was a conflict between keeping that promise and, if we want to talk in legal terms, keeping my oath to support the Constitution. In all three cases the Constitution was being blatantly and clearly violated by the president in a consistent way.
In Vietnam the Pentagon Papers showed that President Johnson had violated Article 1, section 8, which assigns the responsibility to going to war to Congress, by lying Congress into issuing a blank check for war (as President Bush did in Iraq). The Iraq field reports showed Manning that President Obama, as had Bush, was violating constitutional, domestic and international laws against complicity in torture, including knowingly handing over prisoners to an ally that would torture them, and refusing to investigate or prosecute torture done either by Americans or allies: all in violation of his oath of office to faithfully execute the laws and to support the Constitution. Snowden found that the NSA, under Presidents Bush and Obama, was massively violating the Fourth Amendment by suspicionless surveillance with or without “general warrants,” themselves forbidden by the Fourth Amendment. And in each of these cases—as Manning, Snowden and I also became aware—the violations were being covered up.
The only way for the public or Congress or the courts to know that the violations were occurring was for someone who knew the truth to tell the truth to Congress at the risk and the almost certainty of going to prison for a long time, or in Snowden’s case, and mine, too, though I didn’t know it at the time, being assassinated. I think Snowden is taking a great risk of being assassinated. Not so much in Russia but in other places. And maybe in Russia, if [President Vladimir] Putin gets tired of him. So you have to be willing to take such risks. I do what I can to support such people because I think that without them, the chance that we will change our nuclear, climate or imperial policies is nil. Our chance to regain our democracy is nil without more Snowdens and Mannings.
CAIRO REVIEW: Is this latest escalation of violations of the Constitution because of 9/11?
DANIEL ELLSBERG: 9/11 happened unfortunately to coincide with the administration including Dick Cheney, who as vice president—who was almost an acting president—had quite explicitly been deprecating the restraints of the Constitution, going back thirty years to the Pentagon Papers specifically and Watergate. He did not think that President Nixon should have faced impeachment for breaking the law. He thought that Nixon had every right to do everything that he did against me and everybody else. And he thought that Reagan had every right in the Iran-Contra scandal to be violating the Constitution and the law by getting money to the Contras that Congress had voted down. In short, Cheney in his full patriotism and his conscience—which I’m sure is as great as anybody else’s, mine or anybody’s, but with a different content—felt we needed a different Constitution, one that gave the president full plenary prerogative powers, and 9/11 gave him the excuse to put that fully into effect with the public’s acceptance.
CAIRO REVIEW: A dozen years later, you’ve got prominent commentators, such as Thomas Friedman in the New York Times, writing that despite their respect for civil liberties, they are more worried about another 9/11 than the government’s abuse of privacy. How do you address their concern?
DANIEL ELLSBERG: Rather easily. His point is, that if you can reduce the chance of another 9/11, that’s worth—you have to infer his value here—that’s worth giving up every wisp of privacy of every American in the country. Because that’s what we’re talking about. To endorse this particular program on the grounds that it reduces the chance of a 9/11 is to say there are no restraints left on the government in their efforts to reduce 9/11 and everything is permitted to the executive branch.
William Binney was one of the very top officials of NSA, who actually devised the program that they are using to collect all this data. He did so with privacy restraints on it that would lead to the encryption of data that they didn’t need; that is, private data that was encountered among Americans, that could only then be decrypted by court order, so that you would only collect and store unencrypted and share information that seemed to be necessary to track terrorists, people for whom you had a warrant to go after. He has pointed out that in devising this program, that the first thing you do is to go after the phone data, including content, of people who are suspected of being associated with a terrorist organization. He says then you take what they call a first hop, you look at all the phone messages to and from those people. You look at all the people now who are communicating with those suspects, who may be a very large number of people to start with. They have a list right now of over a thousand people who are serious suspects. In the second hop, you look at all the communications to and from those people. So now you enlarge that to all the people who have made a phone call or digital call or any connection with those people. Now you’ve got a very large set of people. He said you have now encompassed anybody that there is any realistic hope of finding any connections or associations [with] that will do you any good for intelligence purposes. He said to go to the third hop or fourth hop, as NSA actually does, gets you essentially to everybody. Meaning that you’re swamped in data, overtaxing your ability to analyze anyway, except in the most shallow machine forms, but he says that with no benefit to an actual intelligence investigation. It will not give you anybody who is associated with ‘those people’ that you started with or the terrorist organizations. He said that in his program initially the idea was there are all those people that you were gathering in that were American, but were not on the first or second hop, that that data would be discarded or encrypted, and not available to the FBI, the local police, anybody else or even to the intelligence community.
What he’s saying is that this dragnet association—contrary to Friedman’s intuition, which is after all based on no expertise whatsoever in the intelligence field—is vastly more information than has any conceivable relation to intelligence gathering. But it does give you the ability to look up anybody that you develop an interest in in terms of politics, dissent, blackmail capability, manipulation of any kind. It gives you a blackmail capability basically, a manipulative capability on everybody in the country. What Stasi would have dreamed of having but couldn’t possibly achieve. So, in short, the first hop already involves you in potential violations of the Fourth Amendment, but the idea that you have to go to this three-or-four-hop dragnet for national security purposes is not based on any professional intelligence judgment. And was for a long time simply denied by Clapper and the others that they were doing that. They weren’t saying, “Yes, we’re doing this because we have to.” They don’t have to. They were denying it because they don’t have to and it’s illegal and abusive.
CAIRO REVIEW: You mentioned the potential chilling effect on the media in terms of investigative reporting.
DANIEL ELLSBERG: No reporter now can offer any source assurance of anonymity.
CAIRO REVIEW: Is that necessary in the Internet era? With organizations like WikiLeaks?
DANIEL ELLSBERG: WikiLeaks would be totally out of business if it weren’t for the Freedom of the Press Foundation of which I’m a part—I’m a co-founder—which has channeled money to WikiLeaks, which had run totally out of money thanks to the illegal, or non-legal, extra-legal embargo that was instituted by Amazon, PayPal, Bank of America, everybody, refusing transactions that would support WikiLeaks. The Freedom of the Press Foundation makes it possible to contribute money to WikiLeaks and other websites that do investigative reporting, and will do that for WikiLeaks as long as it’s under this kind of embargo. What I’m saying is you don’t just have WikiLeaks. They’ve done everything they can to close down WikiLeaks. I should add, there are increasing indications that they’re preparing to go after journalists directly. Specifically, James Rosen of Fox News is named in an affidavit by an FBI guy who was looking for phone records, as having aided and abetted the criminal activity of Stephen Kim, who [allegedly] gave him information. That’s saying that the journalist who prints the information is aiding and abetting, conspiring in other words, with a criminal. That’s a pretty strong indication that they feel themselves legally able to go after the press directly. If there is a sealed indictment against Julian Assange, as is probably the case, that’s against a journalist, a journalistic enterprise. I think they’re hoping he will be perceived by other journalists as ‘not one of us,’ you know, not fully journalistic. Bill Keller of the New York Times said that he couldn’t recognize it as journalism, although he opposes prosecution of WikiLeaks. That’s an indictment of journalistic enterprise. If they can go after Assange, they can go after the New York Times.
CAIRO REVIEW: Is the press standing up to this?
DANIEL ELLSBERG: By the way, the figure I gave you earlier of 600 million dead from our plans in 1961; as far as I know, that remains Top Secret. That’s never been released. It’s never been declassified. I’ve said it publicly very often and they haven’t drawn attention to it by going after me on this. But under their criteria you, if you publish that, would come under the wording of the Espionage Act. Are you authorized to receive that? No. Do you have a clearance? No. Are you giving it to people without a clearance? Yes. Then you come under 18 U.S.C. 793 paragraph E for unauthorized possession of classified material. And so do your readers, amazingly enough! Sorry, feel free to take it out if you want. But there it is. Now they haven’t actually brought such a prosecution because in the past they would have expected a Supreme Court to have ruled that part of the law unconstitutional, and then they would have no law to quote. But now they’re edging up closely to doing that. I think they figure that with the current Supreme Court, they could get away with it.
CAIRO REVIEW: Is the American press doing enough?
DANIEL ELLSBERG: No, not at all. They’re only slowly beginning to wake up to the fact that Assange really is one of them in the eyes of the administration. I think the AP wiretaps woke them up considerably. Then the affidavit on Rosen has gotten their attention. Because if a reporter can be accused of aiding and abetting just by using a source, they’re obviously all under the gun. They haven’t actually prosecuted Rosen, but Risen has now been held by a circuit court that he has to testify or face jail on contempt as to who his source was. So it’s getting very close to home. I think what they should realize is that it is important to establish the legal principle that the use of the Espionage Act against an unauthorized disclosure for the purpose of informing the public and benefiting the country is not a crime. That’s to say that what I did might not be a crime if the jury agreed with me as to my motives. And to prosecute such things without any mention of motive or whistleblowing or intent to help the enemy, which is the current situation, that that’s unconstitutional. And to use the Espionage Act as an act against disclosures is unconstitutional. That would happen in Britain, but Britain doesn’t have a First Amendment. They didn’t have the revolution that we had.
CAIRO REVIEW: Have you been in contact with Snowden or Manning?
DANIEL ELLSBERG: I tried to have contact with Manning but I was escorted out immediately when I said hello to him in court. They said you can’t talk to the defendant. Snowden I have been in indirect contact with.
CAIRO REVIEW: For what reason?
DANIEL ELLSBERG: Oh, to tell him how much I admired him, what he was doing.
CAIRO REVIEW: Did he respond?
DANIEL ELLSBERG: Yeah.
CAIRO REVIEW: What did he say?
DANIEL ELLSBERG: He said among other things that he and his partner—who he left behind in Hawaii, he wasn’t able to tell her anything what he was doing—had together gone to see The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers a year ago. He said, “That definitely hardened my resolution to do what I did.” And he had also been educated by Manning’s example. I think Manning had inspired him but also taught him that he had to be out of the country when he revealed this. Otherwise, unlike me, who was able to speak freely and raise funds for my trial throughout my indictment, which lasted almost two years, he would be in a cell like Manning, in isolation that whole time. We’d never see him again or hear from him. No reporter has talked to Manning since she was first arrested more than three years ago. She’s been incommunicado.
Our Urban Dream
The twenty-first century marks the consolidation of a demographic shift that was set in motion by the industrial revolution and has not stopped gaining momentum since. Around the world, the supremacy of rural populations over urban ones has been reversed and cities have experienced accelerated growth. They have been through deep transformations that have left a legacy of fantastic possibilities and challenges.
According to the 2007 UN Habitat Global Report on Human Settlements, approximately one billion human beings live in slums—and the figure is growing. Likewise, in environmental terms, it is estimated that 75 percent of greenhouse gas emissions are linked to cities, as many sources including United Nation agencies and the Clinton Global Initiative point out.
Therefore, the search for solutions to enable lifestyles that can bring about a more harmonious relationship between our civilization’s social, economic and cultural demands and nature is ever more pressing. It is in the cities that decisive battles for the quality of life will be fought, and their outcomes will have a defining effect on the planet’s environment and on human relations.
There are those who portray an urban world in apocalyptic colors, who depict cities as hopeless places where one cannot breathe, move or live properly. I do not share these views. My professional experience has taught me that cities are not problems; they are solutions, and so I can face an urban world with optimism instead of fear.
My strongest hope resides in the speed of transformation. For instance, the demographic projections based on the high birth rates of twenty or thirty years ago have not been confirmed, allowing us a more encouraging view on the growth of cities for the next years and decades. This opens up an increasingly positive perspective of evolution in which a doomsday scenario is not the only alternative.
Renewable energy sources, automobiles emitting less pollution, new alternatives of public transportation and communication technologies that reduce the need for travel are preventing the chaos that was predicted for large urban centers. The evolution of technology and its democratization are presenting new perspectives for cities of all shapes and sizes.
In terms of physical configuration, cities of the future will not differ significantly from the ones of yesterday and today. What will differentiate the good city will be its quality of life. Socially just and environmentally sound cities—that is the quest.
By having to directly deal with economic and environmental issues, this quest can foster increasingly positive synergies between cities, regions and countries. As a consequence, it will motivate new planetary pacts focused on human promotion.
You may say I’m a dreamer. But, if I may quote John Lennon, I’m not the only one. The experience of Curitiba, a city where I had the honor of serving as mayor for three terms, among many other cities that have taken these issues to heart in the past decades, shows that this positive scenario is possible.
But for that, a certain sense of urgency is vital. The idea that action should only be taken after having all the answers and all the resources is a sure recipe for paralysis. The planning of a city is a process that allows for corrections, always, especially if you are open to feedback from the people involved.
The lack of resources cannot be an excuse not to act. Some resource-rich cities have seriously compromised their future with costly and equivocated interventions, such as the channeling of rivers and the building of extensive infrastructures for private transport.
To innovate is to start. Hence, it is necessary to begin. Imagine the ideal, but do what is possible today. Long-term planning is necessary, but we need urban policies that can generate change beginning now. The present belongs to us and it is our responsibility to open paths. In the roots of a big transformation there is a small transformation. The essential thing is to make it happen and then take the rest of the time enhancing it. Start creating from simple elements, easy to be implemented, and those will be the embryos of a more complex system in the future.
For instance, the Integrated Mass Transit System of Curitiba (which later became known as Bus Rapid Transit, or BRT), which started in 1974 with one twenty-kilometer axis of dedicated lanes transporting twenty-five thousand passengers per day, has evolved into a system that now transports daily over 2.2 million passengers in the capital and its metropolitan region with a single tariff in over eighty kilometers of dedicated lanes.
Those responsible for managing this urban world must have their eyes looking at the future, but their feet firmly on the ground at the present time. Those that only focus on the daily needs of the population will jeopardize the future of their city. On the other hand, those who think only about the future, disregarding the daily demands, will lose the essential support of their constituents and will not accomplish anything.
Many cities are losing the battle against degradation and violence exactly because they settled for the view that difficulties were too big and could only be dealt with after all planning instruments and financial resources were in place. Thinking this way only exacerbates the problems, which encourages citizens to believe that a solution is no longer possible.
A city is a collective dream. To build this dream is vital. Those responsible for the city must react. It is crucial that they project a more optimistic outcome for its future, by presenting successful scenarios that can be desired by the majority of the population to the point that citizens will commit to them. To build this dream, this scenario, is a process that acknowledges and welcomes the multiple visions that inhabitants, managers, planners, politicians, businesses and civil society have of their city, and demands the setting of co-responsibility equations to make it happen. The more generous this vision, the more grounded the equations, the more good practices will multiply and, in a domino effect, the more rapidly they will constitute a gain in quality of life and solidarity.
Once the priorities are set, we have to make it happen, and to make it happen quickly. Strategic punctual interventions can create a new energy and help the desired scenario to be consolidated. This is what I see as urban acupuncture: it revitalizes a sick or worn-out area and its surroundings through a simple touch at a key point. Just as in the medical approach, this intervention will trigger positive chain reactions, helping to heal and enhance the whole system.
What I see is that many cities today need urban acupuncture because they have neglected their cultural identities; others because they have neglected their relationship with the natural environment; others still have turned their backs on the wounds left by economic activities. These neglected areas, these scar marks, are precisely the target points for stimulation. The contemporary world demands increasingly fast solutions, and it is the local level that can provide the quickest responses. But it is necessary to have a strategic view, to plan to make it happen for the people and not for centralized and centralizing bureaucratic structures.
It is necessary then not to lose track of the essence of things, to discern within the amazing meanders of today’s available information what is fundamental and what is important, to distinguish the strategic from the daily demands. A clear perspective of future objectives is the best guide for present action. That is to say, to bind the present with a future idea. There are three imperative issues to be addressed when establishing the priorities of a city and considering its scenarios: mobility, sustainability and identity.
In terms of mobility, every city has to make the best out of each available mode of transportation. The secret to success resides in not having competing systems on the same space and using everything that the city has in the most effective way: buses, metro, cars, taxis, bikes, pedestrian areas. For instance, non-proprietary individual modes of transportation can be part of a transit network, such as Paris showed us with the Vélib’ bicycle system. The same concept could be used for compact, energy efficient cars.
It’s my belief that the future of mass transport is on the surface due to its greater flexibility, lower costs and shorter implementation time. Using a mix of features (such as dedicated lanes, on-level and prepaid boarding and high frequency), it is possible to achieve a performance similar to more expensive underground systems. A healthier city happens where the car is not the only comfortable option of transportation; where the energy of unnecessary displacements is saved; where walking along its streets, parks and avenues is encouraged.
Regarding sustainability, the main idea is to focus on what we know about the problem instead of what we don’t. We must remember to transfer this knowledge to our children, who will then teach their children. Simple things from the day-by-day routine of cities can be part of the solution: how each one can help by reducing the use of cars, separating garbage, living closer to work or bringing work closer to home, giving multiple functions during the twenty-four hours of the day to urban equipment, saving the maximum and wasting the minimum. In my last term in office as mayor we implemented a recycling program that was embraced by most of the households and increased exponentially the percentage of recycled garbage in Curitiba. Called “lixo que não é lixo” (garbage that is not garbage), it had school children as its main ambassadors. We developed an educational campaign with specially designed characters (a Familia Folhas, the Leafs Family) that would visit the schools and talk to children about recycling. In turn, the children would take that knowledge home and make sure their parents knew about it. It was an outstanding success.
Sustainability is an equation between what is saved and what is wasted. Therefore, if sustainability equals saving/wasting, when wasting is zero, sustainability tends to infinity. Waste is the most abundant source of energy.
Although the use of basic construction materials such as cement, metal, glass, wood and plastic in the most sustainable way possible can help improve the situation, as certifications such as the U.S. Green Building Council’s Leadership in Energy and Environmental Design program recommend, these advancements will be of little consequence if all that happens is that people move from one sustainable building to the next in an unsustainable urban environment.
Therefore, it is in the conception of cities that the largest and most significant contribution to a more sustainable urban environment can be made—again, provide the city with a structure of growth that does not segregate life and work. A sustainable city, for instance, cannot afford the luxury of leaving districts and streets with good infrastructure and services vacant. Its downtown area cannot remain idle during great portions of the day. It is necessary to fill it up with the functions that are missing.
Last but not least, there is the issue of identity. Identity is a major factor in the quality of life; it represents the synthesis of the relationship between the individual and his/her city. Identity, self-esteem, a feeling of belonging: all of these are closely connected to the points of reference people have about their own city.
Rivers, for instance, are important references. Therefore, instead of hiding them from view or burying them in concrete, cities should establish riverbanks as valuable territories. By respecting the natural drainage characteristics, cities can make sure the preserved areas provide necessary episodic flooding relief channels and still be used most of the time for recreation in an economically and environmentally friendly way. Parks can work within a similar logic, providing areas that people can relate to and interact with.
Historical districts are also major reference points, closely related to the city history since its inception. However, these areas often suffer a process of devaluation and degradation. Finding ways to keep these districts alive by connecting identity elements, recycling outdated uses and hosting a mix of functions is vital.
Cities are the refuge of solidarity. They can be the safeguards of the inhumane consequences of the globalization process; they can defend us from extraterritoriality and the killing of identity. The main component of a more humane city is diversity—of functions, of incomes, of ages, of uses, of typologies and so on. The greater the sociodiversity, the higher the quality of life.
The democratic city is the city without ghettos—be they healthy or poor; housing complexes segregated in remote peripheries or luxurious gated communities within cities. Democracy requires diversity, the coexistence of multiplicity that brings benefits to all. The democratic process requires that all strata of the population participate actively in the making of the city.
Soul of a City
The resources to implement change can be attained through co-responsibility equations: mechanisms to articulate efforts, potentials, and capabilities of the government, private and social sectors.
Nowadays, in the environmental area, mechanisms of compensation for carbon reduction have been created and are being implemented little by little. Let me recall one possible co-responsibility equation aimed at substantial gains for the environment, social development and quality of life. At the United Nations Conference on Global Solidarity: The Way to Peace and International Cooperation, in 2000, I proposed a UN Solidarity Bonus as a compensation mechanism. The country that accomplishes actions of environmental preservation/recuperation would earn an environmental bonus, which could be exchanged for a social bonus such as the relief of foreign debt or direct social investment—and preferably both.
The UN can be the coordinator of such compensation, setting up with the member states an equation that encompasses local governments and accredited NGOs that would share their social mobilization skills, in a virtuous effort of income generation and educational advancement throughout the world.
Especially in the developing world, there are large numbers of people—often unemployed—living in unhealthy, unsuitable areas and, with that, contributing to further deteriorating the environment. The favelas that emerge in large numbers often in fragile environmental areas, such as riverbeds and mountain slopes, are an increasingly more visible reality. The illegal occupation of seemingly vacant land grows, for housing or income-generation activities. These people could be mobilized to preserve their environmental heritage, being paid for it and receiving more access to information and education through the solidarity bonus. This mechanism creates a win-win situation: the less-developed countries would simultaneously diminish their financial debts and also their social debts.
The environmental agenda is a life contract that the present signs with the future. This apparently simple, even naïve mechanism, can have a huge impact in the reduction of poverty in cities all around the world. It is an equation that can rapidly alleviate the needs of the most needy. For the wealthier ones, this equation would ensure, in addition to the environmental benefits, an economic gain in the sense that it would lead in time to the growth of consumer markets in these countries, with the inclusion of large and new contingents. It also represents insurance for democracy and world peace. It is an example to illustrate how help to the environment and to a parcel of the population can be for the benefit of all.
Poverty, ignorance and environmental degradation, among others, are unacceptable debts and can no longer be postponed. And these debts cannot be paid without a global effort and strategy. If we want peace, we must create possibilities to disseminate more rapidly the wealth, knowledge and effective participation of all peoples in the designs of humankind. It cannot be just a ‘mitigating solidarity,’ incapable of generating lasting results. It is critical that we move toward the practice of ‘preventive solidarity,’ capable of generating better perspectives to all peoples. Our fiercest wars are happening in cities, in their marginalized peripheries, in the clash between wealthy and deprived ghettos; the heaviest environmental burdens are being generated there due to our lack of empathy for present and future generations. And this is exactly why it is in our cities where we can make the most progress toward a more peaceful and balanced planet.
A city is a structure of change, even more than a model of planning, than an instrument of economic policies, than a nucleus of social polarization. The soul of a city—the strength that makes it breathe, exist and progress—resides in each one of its citizens.
Jaime Lerner is an architect and urban planner. From 1994 to 2002, he was governor of the state of Paraná, in southern Brazil. He previously served three terms as mayor of Curitiba, Paraná’s capital. Among his many awards are the United Nations Environmental Award (1990), the Child and Peace Award from UNICEF (1996), and the World Technology Award for Transportation (2001).
“You go to the police station at four in the afternoon to declare that you exist…
You stand still in a street that devours you, just as you in turn devour your rage and defeat.
What is homeland? To hold onto your memory—that is homeland.”
—Mahmoud Darwish, Journal of an Ordinary Grief
February 23, 2013, early morning: with no warning, armed state government officials descend on Badia East, a centrally located shack neighborhood in Lagos, Nigeria, and smash rickety houses and businesses to the ground.
In the days that follow, the Lagos state commissioner for housing is adamant that the eviction and demolition were a public service. “It’s a regeneration of a slum,” the honorable Adedeji Olatubosun Jeje told the New York Times. “We gave enough notification. The government intends to develop 1,008 housing units. What we removed was just shanties. Nobody was even living in those shanties. Maybe we had a couple of squatters living there.”
The residents told a different story: people were sleeping when the bulldozers descended. Later, they discovered that the government had, in fact, informed the baale (the area’s traditional ruler), a man they seldom communicate with and who lives far across town in a different neighborhood. What’s more, they noted, they had been uprooted once before, in 1977, when the federal government built the nearby national theater and relocated families living on that site to Badia, which was under federal jurisdiction because a railroad line ran through the area.
The way the residents understood it, this transfer gave their new community implied federal recognition; the state could not simply come in and destroy their homes and livelihoods. “We were moved to this place by the federal government,” said Biola Ogunyemi, a local activist whose home escaped demolition—for now—as we walked through the wreckage of Badia. “Now they want to evict us again, without coming here to discuss with us. Lagos State has stolen our rights away from us.” A white pickup full of gun-toting state government forces cruised by as we spoke. The residents, who had done nothing to resist the storm troopers, grew quiet and waited for the commandos to depart. Our conversation picked back up as the truck pulled away, and one resident whispered the obvious: the sole purpose of the armed drive-by was intimidation.
As many as nine thousand people were pushed out of Badia East that morning, the Social and Economic Rights Action Center, a local non-governmental organization, has reported. Days after the eviction, a hardy few were scavenging scrap from the demolition site, seeking boards they could use to rebuild and rubber or metal they could resell. Months later, scores of families were still living nearby on makeshift platforms they had erected above a swamp or encamped on the open dirt with no shelter at all.
Perhaps the residents assumed that their thirty-plus years of occupancy gave them some sort of possession right. Perhaps they believed that the federal government would not betray them by allowing them to be pushed out a second time. Perhaps they simply couldn’t comprehend that their less-than-modest community could be of interest to anyone else. But they didn’t reckon with the new mega city plan championed by Lagos State Governor Babatunde Fashola, whose policies are altering the city in staggering style.
Fashola believes that shantytowns and street markets are a visual and moral blight, and his administration has been avidly getting rid of them. Badia, a sea of shacks in a bustling neighborhood not far from the port, is in the crosshairs because of its location. It sits in the shadow of a busy elevated highway interchange and directly across the street from the 7-Up bottling plant in adjacent Ijora. Under Fashola’s plan, Ijora will become the temporary terminus of one of the new light rail lines under construction in the city. All rail passengers coming from the east, along the Badagry express road and the major interchange called Mile 2, and heading to Lagos Island, Victoria Island or Lekki—the most popular areas of the city for big businesses—will have to disembark in Ijora. Badia, neglected for years, is suddenly desirable turf.
A Tattered Atlas
Now imagine a different scenario. Suppose, starting back in 1977, that the people of Badia, shocked by their forced relocation from the national theater site, had created a map of their new community as they developed it and determined to chronicle all the changes they experienced as the neighborhood moved forward. After three decades of ceaseless editing, this always-up-to-date map would be incredibly fragile—frayed from countless erasures and pencil marks and innumerable times being folded and unfolded and folded again. Despite its tenuous condition, this tattered atlas of the community would be invaluable.
It would document the neighborhood’s history: the structures, stores, pathways, alleys, houses, ditches, pilings; the local landmarks and how they changed over time; the names of the traditional healers and juju men and women’s circles and self-created community institutions; the locations of latrines and garbage heaps and self-built wooden bridges that snake across the mud flats, offering a sketch of the privately owned but communal infrastructure that has made life better in the community. And it is crucial that this document be ink-on-paper. Yes, there are currently a number of worthy digital projects, like Map Kibera, an online effort to chart the contours of Nairobi’s largest shantytown. And yes, digital maps don’t degrade. But they also don’t have the same local reach—because most people in Badia and Kibera and other shantytowns and street markets don’t have personal computers, smartphones or broadband connections stable enough to access and continually update an online map.
Suppose that, long before the state swooped in to raze their homes, the people of Badia had presented annual copies of this living map to the local and national governments, to the United Nations, to the World Bank (which has given the state government $85 million for drainage projects, including one in Badia East). Suppose they had given a copy to the baale, to the local politicians and all the political parties. Suppose they filed copies with the local land records office and with the court and gotten copies to all the newspapers in town. Suppose they had, in short, used the map as a tool to declare, “We exist—and we don’t have to go to the police station to declare it. We matter. We are important.” Would the government have found it quite so easy to evict them then?
Every squatter neighborhood needs to be its own troubadour, every street market its own cartographer, every informal community its own town crier. In this way, each can demonstrate its history, importance and value. Think of how powerful Tunisian street vendor Mohammed Bouazizi, whose tragic self-immolation ignited the Arab Spring, might have felt if he had been on a city map—literally, his location, products, accomplishments and value recorded on paper and filed with the government. He might not have felt the need to set himself ablaze in front of a government office to declare his existence. He might have found another route, in concert with his fellow vendors, to make his frustrations known.
This, of course, represents a seismic shift in strategy for squatters and street merchants. In the early days of their encroachments, squatters and street hawkers hid from the authorities, figuring that flying under the radar was their best guarantee of survival. If they successfully avoided detection, they felt, they could achieve a level of freedom and stability. But as cities pursue growth at all costs, spending wildly to attract international sporting events, or trying to build themselves up as business and tourist destinations by copying the planning techniques of the West, there is no longer any hiding.
Under his mega city plan, Governor Fashola wants to recast the massive Nigerian commercial metropolis to be more like Dubai. In pursuit of this goal, Fashola has criminalized street vending, sent squads of paramilitary police to smash down massive street markets, outlawed most okada, or motorcycle taxis (there were perhaps one million motorcycle taxis operating in Lagos and banning them trashed an industry that, in a very conservative estimate, generated a turnover in the neighborhood of $500 million a year—money that mostly circulated locally), and turned loose the bulldozers on shack communities. Even gigantic markets like Oshodi—which for decades sprawled over a highway interchange and became so massive that it was like an immovable chaotic commercial cosmos that took over buildings, sidewalks, streets, a train line, and even the highways—are at risk. Indeed, Fashola’s vengeful quasi-police force, the squadron called Kick Against Indiscipline, made quick work of Oshodi, destroying most of it in 2009, meeting almost no resistance.
In this kind of environment, spontaneous neighborhoods and markets can no longer imagine that they exist in a vacuum. Rather, they must declare their presence and take charge of their interaction with government and the rest of the city.
To Possess a Roof
Around the world, cities are drawing up master plans with little public input and then using those plans as policy weapons of mass destruction, rushing to demolish impoverished communities and destroy vital informal markets in the name of progress and civic betterment. The estimated 900 million squatters who live in self-built communities are generally not part of these plans. Nor are the majority of working people (1.8 billion people, 60 percent of the workers of the world) who labor off the books, in the informal markets or on the streets or who get paid with cash under the table.
Mumbai officials have pointed to Shanghai as their development model and have periodically razed shantytowns and pushed hawkers off the streets. São Paulo and Kigali have claimed Singapore as a model for development—and São Paulo recently pushed out the street merchants on Rua 25 de Marco—where trade was so brisk that, if it were a single corporation, its annual turnover would make it one of the five largest Brazilian-owned firms in the country. Rio de Janeiro has demolished favelas and street markets as it spruces up in anticipation of the 2014 FIFA World Cup and 2016 Olympic Games.
What these cities forget is that they have their own culture and development patterns. They don’t have to turn themselves into somewhere else. It hardly seems an accident that Dubai, Shanghai and Singapore, these purported models of urban excellence, are authoritarian cities where big government and big businesses run the streets. There is little citizen empowerment in these municipalities. Rather, they are notable for central control of development decisions, for devoting development efforts to attracting tourists rather than making life better for residents, and for enforcing strict laws regarding personal conduct.
What would happen if every one of the informal outposts and enterprises in these cities made their own equivalent of a map? If the vendors in São Paulo’s massive street markets had mapped their stalls and the global journeys merchants took to get their products and the distance their customers traveled to get to the market? If the okada drivers, rather than folding up shop and selling their bikes, had mapped all the trips that they made in every neighborhood of the city for a month, thus showing that they were a necessary and well-accepted provider of public transport? If all street hawkers recorded their itinerant journeys, showing where the best spots were to sell and how many miles they walked every day? If the metal scavengers and plastic recyclers mapped their routes and where they found the most valuable material? If the garbage dump scavengers mapped where the trucks came from at what times of day? If the communities threatened with demolition drew themselves into existence?
Every second, the urban population of the world edges upward by two people. That tiny increment, compounded over minutes, hours and days, makes an avalanche: cities around the globe are growing by 60 million people a year. Almost all of these new urban residents will be in the cities of the developing world. They will be the root of urban population growth and at least 50 percent of global economic growth. Simply put, there’s no government, no global or local non-governmental organization, no private developer, who can build enough housing for these new urban residents at a price they can afford.
The novelist Patrick Chamoiseau said it best: “To be is first and foremost to possess a roof.” For the 60 million new urban arrivals to exist—for them to be full-fledged individuals, workers, citizens, to raise families, to participate in social and civic life—they must have a roof, and to do this they must build for themselves, even if that means constructing their homes illegally. The world’s squatter communities are neighborhoods of strivers. Squatter communities may not yet have water, electricity, sanitation or sewers, but they have something else: incredible individual and collective energy and spirit. Despite the obvious degraded conditions, the residents live with great gusto. They buy food and household items and, when they can (more often than you might expect, actually), they party. Indeed, it’s fair to say that every one of the world’s shantytowns, no matter how small, has at least one grocery store, one restaurant and one bar.
The Umbrella Market
Major makers of consumer goods and beverages have recognized just how big the shantytown market can be. From laundry detergent and toothpaste to beer and soda, major multinationals have made it their business to get their products into the stalls, stores, saloons and salons of these self-made communities. Selling to firms in the shantytowns is no different than selling to any other businesses—though perhaps involves more cash-in-hand transactions than credit cards.
It’s the same with street markets. Major firms know that selling on the street represents a powerful tool. Procter & Gamble, a multi-billion dollar consumer goods company, has recognized that its continued global growth requires getting its products into street stalls and shantytown stores in the developing world—and it has adjusted its policies to include them. “No matter the legislation or fiscal structure of the country,” Paul Fox, P&G’s chief PR man, told me, “we want to make sure these stores are financially viable.” All told, these small but high frequency shops account for 20 percent of P&G’s business—making them the company’s largest, most important, and fastest growing market segment.
The mobile phone providers of Africa are one of the enduring examples of creative use of a street sales force. The press has been full of stories of the emergence of the mobile phone economy—a continent with just 16.5 million mobile subscribers in 2000 saw mobile accounts rocket to 650 million by 2011. This makes Africa a bigger mobile market than either the United States or the European Union—with very little analysis of why this leapfrog technology has grown so quickly.
What accounts for the success? Two things stand out: street selling and piracy.
Mobile phone providers in Africa were willing to tap into a ready-made, unlicensed sales force of street vendors. In much of the developing world, phones are pay-as-you-go—meaning that you have to buy airtime credit to make calls. Since most mobile phone providers on the continent don’t sell many phones or monthly contracts, those minutes are the key to their corporate profits. They sell the airtime through unlicensed sidewalk merchants and street hawkers. This roving sales force is so big and so profitable that the mobile phone companies consider it a legitimate distribution channel. They call it the umbrella market, in honor of the umbrellas that these roadside vendors use to shade themselves from the sun and rain.
Here’s how the system works: the mobile providers produce recharge cards. They sell them in bulk to distributors, who in turn sell to sub-distributors who sell to the roadside vendors. If the vendors buy in bulk, they can get a discount, and that discount is the source of their profit. “We don’t have a direct relationship with the gentleman or lady on the street,” said Akinwale Goodluck, who at the time we spoke was general manager for -regulatory issues for the South Africa-based mobile provider MTN, which has a 40 percent lock on the Nigerian market. Nonetheless, he told me, most mobile providers in Africa earn the bulk of their cash by selling recharge cards, and roadside sales account for the bulk of profit. “The umbrella market is a very, very important market now,” he said. “No serious operator can afford to ignore the umbrella people.”
The existence of the umbrella market ensures that people don’t have to go out of their way to buy airtime. There’s always someone selling recharge cards—whether on the corner, on the sidewalk or threading their way through traffic—and it’s this presence that has helped make mobile service convenient and popular. In this way, street hawkers function as a social good, and a key driver of profits for major corporations.
Pirates, too, had a hand in the spread of phones. Take Kenya. When I was first there a decade ago, the mobile phone revolution had not reached the masses. Entrepreneurs, businesspeople and politicians all had mobile phones. So did the creative class. But I was hanging out in Kibera, the largest mud hut neighborhood in the Kenyan capital, and few of the folks I knew there had mobiles. Fast-forward ten years and the situation is totally different. There are now 30 million mobile phones spread among 24 million Kenyans over the age of fifteen—an effective penetration rate of 125 percent. Most of my friends in Kibera now have mobiles. Even scavengers at Dandora, the city’s noxious garbage dump, have them.
What explains the ubiquity? Pirate manufacturers, most of them from China, drove the cost of a handset down. A decade back, a mobile phone was a luxury item out of the reach of the poor. Knockoffs, when they arrived, cut the price, and the sudden arrival of cheap phones helped mobile usage explode. In this way, piracy served the public good (and, not coincidentally, the corporate good). When I was in Guangzhou, China, I met dozens of merchants seeking to get their hands on pirated phones. They didn’t call them pirated or counterfeited or even fakes. To these entrepreneurs, the pirated phones were, in the words of Chief Arthur Okafor, who had a small (if you can call $40,000 in pirate purchases per trip to Guangzhou small) but highly profitable business smuggling pirated Nokias into Nigeria, “real copies.”
Indeed, Nokia, the largest-selling phone brand in Africa (the Finnish firm, whose mobile business was recently bought by Microsoft, still boasts around a 60 percent market share on the continent), has recognized that the way to win the African market is to outmaneuver the pirates. In March 2013, when I was last in Nigeria, I discovered that a new Nokia handset cost just $19. That’s less than half what I paid five years ago. When a phone is that cheap, there’s almost no reason for it to be pirated. Nokia has even learned a trick or two from the pirates. For instance, around 2009, some savvy pirate operators started producing phones that could handle two SIM cards simultaneously—two lines that you could switch between as if you were using call waiting. Now Nokia offers its own dual SIM phone for just $29. In effect, Nokia has copied the pirates. And the firm is continuing to ensure that prices will remain low as it rolls out smartphones for the African market. For example, the company recently released what you might call a semi-smartphone that retails for less than $100. With a hyper-long battery life—advertised as seventeen hours of talk time and forty-eight days of standby—the phone seems specially designed for the shantytowns and street markets of the world, areas that have limited access to electricity.
With the price of name-brand handsets falling, Kenya was able to take the controversial step of canceling service on pirated phones. Overnight on October 1, 2012, the Kenya Communications Commission deprived 1.9 million people of the use of their mobile phones. But the move went off without much protest because customers could now find legal replacements at an affordable price.
From Slum Dwellers to Policy Makers
Squatter communities and street markets need to publicize these positive facts. Mapping is only one idea. There are other possibilities. A street market could form a claims club, a kind of cooperative neighborhood registry in which each vendor would record where he did business and what kind of business he did; in this way establishing a non-binding, unofficial claim to his kiosk or place in the market. Claims clubs like these were common in the United States a century and a half ago, as homesteaders and squatters who led the western migration across the continent (and in the process boosted the country’s economy) looked for a way to stake their tenuous claim to the land where they had settled. A community could conduct a census, simply documenting how many people lived there. A market could start a newspaper or initiate a cooperative improvement association, taking tentative steps toward public betterment by, perhaps, paving a road or installing a few battery-powered streetlights.
Of course, simply making a map, establishing a local claims registry, convening a mini planning tribunal, or opening a local media outlet are not sufficient for people to gain a right to the city. These do-it-yourself strategies are simply a start. They’re no replacement for direct action. Squatters and street vendors will have to go public. They will have to show that, if government wants to push them out, they will not go gentle into the night. They will have to engage in a campaign to take control of their futures. This may take the form of organizing a large public pressure group to push for proper policy changes. It could also involve joining the system and even entering the political arena and running candidates for office. And, in a move that would be truly transformative and dynamic, squatters and street vendors could establish new civic ventures based on a three-way partnership between residents, vendors and their customers. These could offer strong, parallel, cooperative systems of governance that would ensure that squatter communities and street markets could never be considered unstable or dangerous or undemocratic or socially destructive.
On the other side, governments need to understand that development is not purely technocratic and that planning rules cannot be inflexible. Rather, politicians and policy makers have to learn to listen to the residents of the discredited neighborhoods called slums and the vast numbers who are derided as criminals because they do business on the street. They are the key component in any true form of urban development. With their own effort and ingenuity, these long-neglected citizens have started on the road toward equitable urban growth. They have created their neighborhoods and businesses out of nothing. They have democratized the spread of technology. They have built sustainable incomes and are increasingly creating steady jobs. We need to turn development upside down and give it back to the people who are creating the new urban world.
Until the damned maps burn
Until the mad cartographer
Falls to the ground and possesses
The sweet thick earth from which he has been hiding.
—Jack Spicer, Psychoanalysis: An Elegy
Robert Neuwirth is the author of Stealth of Nations: The Global Rise of the Informal Economy and Shadow Cities: A Billion Squatters, A New Urban World. His articles have appeared in the Nation, New York Times, Washington Post, Harper’s Magazine, Scientific American, Forbes, Fortune, Metropolis and City Limits, among others. He is writing a book about self-governance and outlaw citizenship. On Twitter: @RobertNeuwirth.
The world has witnessed the rise of new economic powers in the past decade, such as the BRICS countries (Brazil, Russia, India, China and South Africa), and Mexico and Turkey, among others. These new economic powers, or NEPs, have begun to define the global economic game, having a profound impact on most markets, from capital and commodities to luxury goods. They have ensured their economic success by leveraging their resources to navigate the waters of an economic system in the midst of a deep transformation toward freer and larger trade, motivating common values and more global institutions. And they have done so hand in hand with a continuing or even accelerating process of urbanization, which to a large extent has emulated the growth path of Western cities.
While the world economic landscape seems to have changed given the new relevance of the NEPs’ urban centers, the rules defining the economic game remain the same. The parameters being used to guide and assess prosperity and progress are still gross domestic product (GDP) and consumption levels. This is reflected, for example, by Chinese President Hu Jintao’s commitment to quadruple GDP per capita by 2020 over its 2000 level, or in his pursuit to shift the Chinese economy into one centered further on consumption.
Yet cities in the NEPs are catching up within an economic system that is today showing signs of environmental, social and cultural crisis. These cities are mostly being developed to foster GDP growth and often seek the prestige of becoming global cities. There are three problems with this course of urban development.
Western cities may be setting the benchmark, but they themselves are facing sustainability challenges that are difficult to solve. The new global cities risk experiencing a lock-in effect caused by current decisions made on infrastructure, technology and product design. Given the large scale and high-speed urbanization process, it becomes easier to repeat ills already experienced in other cities. Finally, along the way in this path of urban development, many local traditions and values are being left behind.
Paradoxically, it is precisely these practices that are aligned with a more sustainable urban life, and indeed they are being adopted as new models for addressing sustainability challenges in the West.
Rethinking the notion of prosperity is crucial to ensuring a sustainable urbanizing process and economic development. Given their economic weight, growing cities in the NEPs can lead and drive change by advancing new sustainable models that simultaneously adopt local values, resources and traditions. To drive a more sustainable and prosperous urban life, it is essential to look at the lifestyles of urban dwellers and understand the impact of their consumption patterns.
Urbanization has a huge transformative effect. As Brian Roberts and Trevor Kanaley rightly synthesize in the study “Urbanization and Sustainability in Asia” (Asian Development Bank, 2006), urbanization redefines lifestyles, employment, welfare, social structures and institutions as well as power relationships in households, organizations and government. Nowadays, the world is witnessing an urban shift of multiple facets. The world’s urban population is now greater than its rural population. While this is already telling, one must look to other trends for a comprehensive picture of the global urban landscape. The direction and shape of this transformation bears great relevance to envisioning sustainable approaches to urban life. Let us look at the main trends and projections.
First, the growing power of urbanization has created a network of global cities that in many fields replaces the traditional system of nation states. Illustrating this, the report “Urban World: Mapping the Economic Power of Cities” (McKinsey Global Institute, 2011) recommends that foreign services align their trade-related diplomatic efforts with the twenty-first century’s urban reality.
Second, cities are increasingly the basis of economic growth. According to the McKinsey report, 38 percent of the world’s population is hosted in large cities, and these cities generate 72 percent of global GDP. Projections run by the McKinsey Global Institute Cityscope database show that the 2,000 cities being monitored will contribute 75 percent of global growth by 2025.
Third, as urbanization increases dramatically in Africa, Asia, Eastern Europe and Latin America, and as cities continue to drive economic growth, the center of gravity of the global economy has shifted to these regions, especially to those in the East. This shift became especially evident during 2007-2010. The contribution to global GDP by cities in the NEPs rose, while that by large cities in the developed countries fell.
Fourth, economic growth will largely be driven by middleweight cities ranging from one to 10 million residents. Only twenty of the 440 emerging cities monitored by the McKinsey database have populations above 10 million; these are considered megacities. While the McKinsey Global Institute explains that economic growth will be primarily in the hands of mid-size cities, this group comprises a set of cities featuring diverse population sizes. Therefore, urban development strategies will have diverse landscapes to work upon.
Finally, these fast-growing cities will host a critical mass of new consumers. As cities develop and become the centers of economic growth, waves of new consumers arise. There has been a substantial increase in the rate of growth of consuming classes (people earning a disposable income above $10 at purchasing power parity per day); between 1970 and 1990, the increase was 1.7 percent per year, 3.5 percent between 1990 and 2012 and it is expected to grow at 3.7 percent per year till 2025, according to the McKinsey Global Institute.
The world has evolved from an approach of pollution control in the 1970s and 1980s to one of pollution prevention in the 1990s. The past decade saw an increased involvement of the private sector through corporate commitment to lessen energy and water consumption. Today, public authorities and private firms are approaching sustainability considerations and management as a source of opportunity rather than only for risk minimization. Current leaders in corporate social responsibility are moving toward net positive programs that aim to move beyond the concept of ‘less bad.’ A noteworthy example of this is Kingfisher Plc, a European home improvement retailer, which is working towards a reforestation rate greater than the deforestation caused by the business.
These public and private efforts are needed and should be further developed, but they should work in conjunction with a focus on the demand side. Up to now, the type of initiatives advanced by cities as well as corporations and most non-governmental organizations (NGOs) reflect a bias toward tackling sustainability from the supply side.
Despite the fact that the concept of sustainable consumption has been around for some time, the initiatives meant to promote it have largely aimed to make goods and services more environmentally and socially friendly rather than attempting to tackle dysfunctional consumption patterns. An example of this is the Puma Eco-box, a box/bag that reduces cardboard use by 65 percent, among other benefits. This is a case of higher efficiency in the supply chain and an appropriate advance in the design phase, yet such a change does not necessarily affect the consumption scale and pattern. Joel Makower, author and chairman of GreenBiz Group, describes such efforts as “smarter consumption” rather than sustainable consumption.
Many initiatives are still focused on how to make the products we consume less bad, but fall short in fostering sustainability through an integral and systemically conceived strategy. To do so would require incorporating a sophisticated metric analysis of the urban dweller’s aspirations and consuming behavior. Not doing so results in inefficiencies, due to the investment required to green a supply chain that serves a demand not necessarily or completely aligned with the goals of sustainability.
A World of Trash
Consumers have a huge impact on sustainability, as personal choices constitute the key basis of markets, as well as social and political forces. Addressing consumption levels and patterns becomes crucial for ensuring economically, socially and environmentally sustainable urbanization.
As the population grows, urbanization advances and the middle class rises, consumption increases and the demand for natural resources keeps accruing. The higher levels of consumption call for a greater absorption of fossil fuels, metals, minerals, trees, land for crops and cattle, and so on. In the report “The New Frontier in Sustainability” (Business for Social Responsibility, 2010), Linda Hwang underlines that population growth, increasing per capita consumption and technological capacity have led to ever greater levels of production and consumption, threatening the quality of the ecosystem services supporting our existence.
A 2008 study from Goldman, Sachs and Company titled “The Expanding Middle: The Exploding World Middle Class and Falling Global Inequality” reminds us that preceding periods of massive middle class expansion (for example, in the late nineteenth century in Europe and the United States) reflected large progress, though it came coupled with political, social and environmental change.
It is important to highlight two things from this report. First, when comparing the resource constraints then with those being felt today (related to water, food and fuel, for example), this study concludes that the situation is arguably more tightly controlled nowadays. Second, the report doesn’t specify what type of progress happened in the past, but it could be said it refers to economic progress and standard of life measured by life expectancy for example, which is actually different from measuring the quality of life. The latter would incorporate the social dimension at least. Moreover, the resulting environmental degradation returns in the form of risks to economic activity and threats to human wellbeing.
Besides the pressure in resource demand, the increase in consumption has a direct correlation with increase in waste generation. As disposable income increases in tandem with the growth of cities and the rise of middle classes, consumption of goods and services expands, stimulating greater generation of waste. In June 2012, a “rubbish map” published by the Economist showed that 1.3 billion tons of annual municipal solid waste is produced globally by cities, an average of 1.2 kilograms per city dweller per day; by 2025, estimates project a rise to 2.2 billion tons, or 1.4 kilograms per person. About half of the current waste is generated by the member countries of the Organization for Economic Cooperation and Development, and the United States continues to lead the ranking in solid waste output per capita. Brazil, China, India and Mexico are among the top ten solid waste-generating countries, in great part due to the size of their urban populations, but also because as income per capita rose, their city dwellers adopted lifestyles based on higher consumption levels.
China has surpassed the United States in the national aggregate level of solid waste generation. As an illustrative comparison, the Economist chart projected that China’s urban population will generate 1.4 billion tons of waste in 2025, representing an increase from the 520 million tons today, while United States waste generation will go from 620 million tons today to 700 million tons in 2025.
The waste problem does not end there; one must also consider the types of waste being produced. Urbanization and affluence promote an increase in inorganic material disposed, such as plastics and metals. What is more, as urbanization advances and the amount of waste increases, the space for landfills becomes scarcer. This constriction, coupled with the pressures of the housing demand, challenges the social dimension of sustainability and heightens the environmental impact of urbanization, especially since waste needs to be transported, at times internationally.
The Millennium Ecosystem Assessment of the United Nations Environment Programme links the destruction of ecosystem services with economic growth, demographic changes and individual choices. These three factors present the qualitative link between consumption and socio-environmental impact, whereby wellbeing is often and largely associated with material possession. As Manish Bapna, managing director of the World Resources Institute put it in a 2011 blog post titled “Seven Billion: The Real Population Scare is Not What You Think,” the resource-intensive lifestyles characterizing the high and middle classes represent much more damage to the planet’s capacity to absorb human impact than the booming birth rate in low-income countries. Decoupling wellbeing and prosperity from material possession and natural resource use must be a guiding principle to advance sustainable urban and economic development.
What is the impact of consumption on urban sustainability at the level of the individual? In a 2008 report called “Sustainable Consumption: Facts and Trends from a Business Perspective,” the World Business Council for Sustainable Development found that although consumers are increasingly aware of the implications of their choices, many have not supplemented efforts in the public and private sector with shifts in their own lifestyle and purchasing decisions. This report cites a survey of consumers run by McKinsey in Brazil, Canada, France, Germany, the United Kingdom, and the United States in 2008.
The surveys revealed that environmental and social issues represented a concern for 53 percent of the interviewees, and yet they were not willing to act accordingly at the shops. Another finding was that 13 percent would not mind paying more to support efforts in tackling social and environmental issues, but were not currently doing so. In other words, despite the greater awareness and concern by consumers, they seem to expect that the change should and will come from the actions of businesses and governments. Driven by their own need for profit and GDP growth, firms and public authorities respond by affecting the supply side to satisfy demands for consumption as usual. This reduces the possible impact of sustainability actions. Addressing the demand side should be an integral component of sustainability efforts.
On Your Bike
Tackling urban sustainability requires big investments, and addressing the demand side calls for new policy approaches. Fortunately, both provide opportunities for ensuring the wellbeing of urban dwellers while fostering a healthier economic development.
First, there are positive changes occurring in consumer values. In her 2011 book Putting the Luxe Back in Luxury: How New Consumer Values are Redefining the Way We Market Luxury, Pamela Danziger explains that affluent consumers’ values are moving away from indulgence, reflecting a search to transcend the ambition for getting more ‘stuff.’ This trend is strengthened by the appearance of Generation Y (born late 1970s-2000s) as a demand segment, an important factor supporting the consumption preferences shift. This younger generation is expressing concern for unethical production and the environmental impact of business activities.
Second, the cities that are to host the new classes of consumers are still in the beginning stages of urbanization, which affords opportunities to adjust the course of urban development. This is critical in terms of environmental impact as well as cost efficiency and savings.
Third, enhancing cleaner production and more sustainable consumption patterns opens up areas for innovation in business models, thus strengthening the acumen and identity of cities. These new areas of dynamic economic activity may also align to a more sustainable urban development, even while generating high-productivity employment.
Fourth, the tools are at the tips of our fingers. There are various habits and traditions in the high-speed urbanizing cities which are more socially and environmentally friendly and are being seen by Western cities as new models to tackle sustainability challenges. A good example is the case of the beauty products company Lush and their non-packaged goods such as shampoo, or the growing number of farmer’s markets in New York City. These are targeting the high-middle income segment with processes and business models that are still alive and culturally embedded in other places.
According to the Future Leaders team of the World Business Council for Sustainable Development, a great part of India still buys small, unpackaged goods from low-cost, family-run shops. While some of these shops could certainly improve their resource intake, the habit of consumers aligns with a more sustainable way of consuming daily goods (that is, refilling, buying in local shops, in bulk and/or unpackaged). Currently, raising income per capita risks driving habits toward more resource-intense lifestyles including the purchase of plastic soft drink bottles instead of returnable glass bottles, and the use of automobiles rather than public transport or bicycles. But policies, regulation and business practices (such as branding and marketing) could work to promote lifestyles that balance higher standards of wellbeing with more sustainable habits. The case of Beijing is illustrative: once a cycling paradise, it is now epitomized by polluted air and traffic jams, only to start promoting bike riding once again.
These opportunities provide ground for action in fast-growing cities toward a more sustainable urban economic development and to tap into the benefits of adopting early changes. The need for such an approach is an urgent one.
Local and national authorities, as well as not-for-profit organizations and private companies, could pursue action in three broad ways: 1) better assessing lifestyles and demand of citizens/customers, 2) supporting smarter consumption through less resource-intensive production, and 3) promoting more sustainable urban lifestyles.
These lines of action need to be pursued together to forge a well-intentioned circle and ensure mutual reinforcement. The aim is to stimulate a creative process in policy making for a new urban lifestyle based on principles such as the importance of systems thinking.
What Citizens Desire
As cities grow, they do so in tandem with changes in population, neighborhoods and lifestyles. Developing, updating and monitoring the necessary methods and parameters to assess these changes are critical for ensuring appropriate policy changes. In fast-growing cities, regulation might be missing or falling behind real needs of residents. The Citizens Housing and Planning Council of New York (CHPC) has put forward an initiative that attempts to overcome this problem in the housing sector. The relevance of the case is compounded by the fact that housing demand will be one of the most pressing issues in quickly urbanizing areas, where buildings account for the largest shares of greenhouse gas emissions.
While lifestyles continue to change, housing standards in New York City have remained largely untouched. Existing regulations promote the construction of larger units rather than smaller ones, and penalize residential density. CHPC’s research reveals that only 18 percent of the city’s housing units host traditional nuclear families (parents and two kids), while 33 percent are occupied by individuals living alone, 23 percent share the home (6 percent of these do so with unrelated flatmates), 15 percent serve couples with no children and 10 percent belong to single parents.
Acknowledging these changes in the city’s housing patterns, in 2007 CHPC created the Making Room initiative. It aims mainly to expand housing options by improving demographic research, heightening the role of design and promoting pragmatic policy in order to serve unmet or underserved demand. Applying such an approach to New York’s reality showed that there was a need for small, efficient studios designed for single-person households, legal shared housing options for unrelated adults, and accessory units to make a single family home more flexible for extended families or additional renters. What is more, a comprehensive analysis of the city population, housing stock and regulation proved that to provide these much-needed options, improving existing housing stock (rather than new construction) would deliver greater benefits.
While the same approach might deliver different results when applied to different cities, it is instructive to recall that housing standards and design are influenced by society’s values, and that demand for sharing homes is an increasing need in many cities and an opportunity to raise efficiency in the use of resources such as land, energy and water.
Once the demand dynamic has been understood, design should follow as a critical element to ensure people find the needed and desired options to consume goods and services that require less natural and material resources and generate less waste.
Mainstreaming sustainability at the design phase is overwhelmingly important and builds to a large extent on understanding current lifestyle patterns. As Hwang highlights, the design stage is a point at which critical decisions are made concerning a wide range of human and material resource flows. This is true for public as well as private goods and services.
Moreover, design is largely judged by its success in meeting a need, therefore, the concept of sustainability should be embedded as a need in the design process, rather than an ad hoc feature. By making production and distribution processes more sustainable, consumers will have more options for smart choices. Succeeding in providing these smarter options should reflect the incorporation of systems thinking and a thorough understanding of the target population in the design phase, rather than solely the introduction of new technology. An illustrative example of smarter consumption of public goods and services is the case of the Parisian bicycle-sharing system Vélib’.
Promoting public transport as a first choice is critical in advancing more sustainable cities, as well as ensuring that public goods and services are produced in a cleaner way. The Vélib’ system succeeded in becoming part of the city’s identity largely because it was advanced in tandem with complementary efforts directed at the boundary of the transport system (reducing traffic congestion, air and sound pollution, revitalization of public spaces). An example of this is that together with expanding the network of pedestrian priority-shared streets, the city promoted Quartier Verts (green neighborhoods). These simultaneous efforts at the transport and neighborhood level align with the development of a more locally based economy and shopping patterns (buying in small local pastry shops rather than at big supermarkets). Not least important is the fact that the Vélib’ bikes are largely recyclable and JC Decaux, the developer of the bikes, has set up a recycling network for worn bike tires, being the first one of its kind in France. This shows how designing for smarter consumption opens up opportunities for new businesses within a more sustainable urban economy. Vélib’ should be a model for transport systems and urban development in urbanizing cities to gradually turn to a greener urban growth model.
The transport sector carries greater relevance for the growing cities in the NEPs, where the auto market is showing an exponential growth. Research from the Goldman Sachs Economics, Commodities and Strategy Team in 2010 estimated that world auto sales could grow up to 104 million units per year by 2020―from 70 million in 2010―and that half of the sales by then will represent purchases from consumers in BRICS nations. What is more, the design of the transport system has huge impact on the lifestyles urban dwellers will carry. As many cities in the United States showcase, designing the urban context with cars in mind implies wide and deep impact on the environment and social dynamics through roads, parking spaces, pollution, and energy requirements. Once the model based on car use is implemented, it becomes difficult to reverse the negative effects.
Businesses have made advances in the private goods supply chain’s energy and cost efficiency, as well as improving reporting and other sustainability management areas. These efforts contribute to reductions in the environmental and social impact and can help raise the global prestige and reputation of the city. To enhance the benefits from actions pursuing more sustainable business models, policy making in the NEPs should look at identifying the income thresholds at which the different products’ adoption paths start, and varying adoption curves reflecting the relation between the local consumer and product or service. The sectors at which the adoption curve kicks off earlier could be prioritized for policy actions on the supply and demand side, ensuring positive feedback on public and private efforts.
Goldman Sachs’ Jim O’Neill highlighted in a 2008 Global Economic Paper for the firm that consumer durables hold their penetration sweet spots on the low-to-middle income threshold and beyond, but within the middle class income. As a result, in the NEPs growing cities there will be an accelerating demand for washing machines, TVs, refrigerators, radios, DVD players, autos and others. Consumers in the BRICS countries for example still allocate a relatively low share of their expenditure to durables; therefore, now may be a good time to set up policies to boost the greening of these sectors, an example of which is Japan’s Top Runner program for energy efficiency in appliances.
While mainstreaming sustainability and heightening the role of design to improve production is needed to decouple wellbeing from material consumption, it does not affect the scale of consumption. There is a need not just to make products greener, but to redefine consumption through favoring services over material products, de-materializing, and responding to needs rather than increasing sales. Efforts to heighten consumer engagement in better use and end-of-use habits should be integrated, especially to extend the life cycle of goods and avoid waste generation. The notion is to focus on the quality of experiences, rather than simply providing more ‘stuff.’ In getting there, it is important to understand and shape more sustainable urban lifestyles.
Chasing the Dream
The economic model on which a city bases its development influences in multiple ways individual consumption choices of public and private goods and services. Current trends show that those choices are creating constraints on the environmental and social capacity to bear them. Therefore, policies guiding more sustainable urban lifestyles are necessary and strategic to cities undergoing the initial or middle phases of the urbanization process.
It is encouraging to know that while people tend to consume more when their income rises, concerns for issues like fair trade and environmental degradation appear to become stronger too. Furthermore, there are already initiatives in place to address the unsustainable consumption pattern through redefining prosperity. Among these is Bhutan’s concept of Gross National Happiness (GNH), coined in 1972 and based on four pillars: economy, environment, community and personal wellbeing. Other countries can incorporate the GNH concept as the philosophy guiding urban development.
The project China Dream advanced by the Joint U.S.-China Collaboration for Clean Energy (JUCCCE) represents a big and tangible step arising from the private and not-for-profit sector. Based in Shanghai, JUCCCE has set actions to promote sustainable consumption besides its two programs on sustainable urbanization and sustainable industry. As Randall Krantz summarizes in his blog Bhutan Chronicles, China Dream addresses the challenges found in the questions: Why should Chinese citizens aspire to an unsustainable American Dream, one built on a model of consumption and growth? Would it not be more appropriate to have aspirations based on local culture and values? The China Dream project has two specific objectives: to shape social norms by creating and seeding a visual lexicon for the new China Dream, and to guide consumer behavior by introducing local policies. The approach involves reaching out to stakeholders from green practitioners to ad agencies in a multi-channel process involving government, media, brands, academic institutions and more. Due to the success and great outreach, the initiative and methodology have now expanded to the United Kingdom with the launch of the UK Dream at the beginning of 2013.
Initiatives such as China Dream go straight to the heart of prosperity aspirations, holding enormous power for long-term deep impact in aligning prosperity, wellbeing and urban development. Krantz also explains that shaping culture and aspirations is substantially more difficult than greening individual products, yet it promises greater margin for action by those that can influence and shape them. In addition, it allows aligning supply and demand toward a more sustainable economic dynamic. The lack of effective demand for more environmentally friendly products and services is often seen by the private sector as a barrier to hold bolder initiatives toward building sustainable business models. Aligning consumption choices with sustainability efforts put forward by city policy makers is crucial to overcoming the barrier in the private sector.
Rethinking Economic Growth
Urban development is a dynamic process that occurs in constant dialogue with the economic growth model followed and the lifestyle urban dwellers pursue. Any action to conduct a more sustainable urban economic and infrastructure development should envision the decoupling of wellbeing from natural and material resource intake.
Addressing this point is a strategic necessity for those cities undergoing high-speed urbanization. To make their current successes endure for generations to come, sustainability must be mainstreamed in the urban as well as economic development models. To accomplish this, the lifestyles of citizens in general and their consumption patterns in particular should be studied in order to guide proper design and ultimately tackled by modifying lifestyle aspirations.
Business strategies and government measures have a great stake in advancing actions to promote innovative business models based on less resource-intense production and more sustainable urban lifestyles that support responsible consumption. This is a pressing side of urban economic development that while often ignored is essential to rethinking the economic growth and prosperity of cities.
Christian Déséglise is a managing director at HSBC Global Asset Management. He is also an adjunct professor at Columbia University, and the co-founder and co-director of the university’s BRICLab, a forum on Brazil, Russia, India and China. He is the author of Le Défi des Pays Émergents, une Chance pour la France.
Delfina Lopez Freijido is a consultant and policy analyst specializing in sustainable economic and urban development. She is a Ginsberg Fellow at the Citizens Housing and Planning Council in New York City, conducting research, analysis and stakeholder engagement for a green building initiative.
The Arab Housing Paradox
The city of the developing world will be the defining feature of global demography in the twenty-first century. This fact is creating new and uncomfortable challenges for which conventional wisdom about urban planning and management is largely irrelevant. Chief among these challenges is the phenomenon of informal housing systems whose scale, complexity, and resilience to formal means of control bedevil countries in Africa, South America and most of Asia.
Also called extralegal, spontaneous or non-authorized housing, informal urban development can be narrowly defined as processes that contravene urban land use plans, subdivision regulations and/or building permit regimes. Much is written about the phenomenon: analytical, prescriptive, and even confused and pejorative—including unhelpful generalizations that equate the dynamic of informal urban development with the creation of slums, shantytowns and bidonvilles, with their deplorable and even inhuman conditions. As is often the case, trying to make glib global generalizations is counterproductive, and the reality varies dramatically from region to region and country to country. The discussion—as well as attempted solutions—is most extensive in the South Asian, Southeast Asian and South American contexts.
In Arab countries, where the phenomenon is usually called munatiq ‘ashwa’ia, or random areas (or, in Syria, manatiq mukhalifa, illegal areas), such urban processes have become, in the last forty or fifty years, an important if unwelcome component of many Arab cities. Looking at the nature of urban informality in these cities and the largely unsuccessful struggles to suppress or accommodate it illuminate much about the contradictions inherent in applying Western-inspired models of planning, financing and regulation by Arab governments and their supporting elites. It also helps expose the paradox of why the pervasive efforts of the international development establishment to offer more nuanced and inclusive approaches toward informal urban development have had so little effect, in spite of its huge scale, popularity and obvious advantages as a generator of durable, affordable housing solutions. A glance at Egyptian cities where these contradictions are most evident, as well as in urban areas of Syria, Yemen, Jordan and Tunisia, can yield insights that go beyond technical analysis and implicate as obstacles the stubbornly high modernist approaches of Arab regimes in their search for political legitimacy.
Cairo to Casablanca and Beyond
In some of the larger urban agglomerations in non oil-dependent Arab countries, informal urban development now accommodates at least half the resident population, and in many others it represents a sizable minority of the total population. Informal settlements, which have existed at least since the 1970s, have tended to establish themselves on the urban fringes or around existing satellite towns and villages, and these have been absorbing both rural migrants and lower-income households decamping from poor conditions in the city centers. Most informal areas have been provided with basic infrastructure and services, although coverage and standards are everywhere much lower than in the established formal parts of cities. One important feature is the progressive development of these areas over time, with residential densities continuing to increase as existing plots of land are further subdivided and as additional floors are added to buildings.
Solid information about the extent and characteristics of informal urban development is lacking in most cities, and even definitions are much debated. Curiously, most of what is known about the phenomenon comes not from municipal or national authorities but from small studies carried out by foreign development agencies and institutes. The former seem for the most part to either ignore the phenomenon or try, usually unsuccessfully, to stop it, without any attempts to assess the scope or understand the dynamics. In any event, in no Arab country is there an exhaustive body of knowledge about informal housing and informal settlements. What is known remains very much partial and piecemeal.
Egypt seems by far to have the most extensive informal urban development of any Arab country, and it is increasing at a very rapid rate. In mapping studies carried out first for Hernando De Soto’s Institute for Liberty and Democracy in 2000 and subsequently for the World Bank in 2008, it was found that informal development, starting in 1960, had at the time of the Census of 2006 accounted for roughly a third of the built-up area and, remarkably, had become the residence of over 62 percent of Greater Cairo’s population. And, even more remarkably, of the additions to the agglomeration’s population between 1996 and 2006, 78 percent was absorbed into these areas, both in existing ‘ashwa’iat and in the informal peri-urban fringes of Giza and Qaliubia governorates. In contrast, formal Cairo absorbed less than just 7 percent of this growth, and the government’s much-hyped new towns in the deserts around Greater Cairo only accounted for 15 percent. By 2011 it was estimated that of Greater Cairo’s 18 million inhabitants, some 12 million or almost 67 percent were to be found in informal areas.
Furthermore, since the January 2011 uprising, informal building all over the metropolis has exploded since any government control has virtually disappeared. Anecdotal information points to a two to threefold increase in informal construction as compared to pre-2011 rates.
Much less is known about the extent of informality in other Egyptian towns, although it would be safe to say that informal areas accommodate in excess of 40 percent of inhabitants in the second city of Alexandria (total population 4.5 million) and probably a higher proportion in the numerous secondary towns in the Delta and Upper Egypt. Practically all such informal development occurs on agricultural land sold by the original owners. Only in the towns of the Suez Canal Zone, where there is ample fringe government land upon which many social and cooperative housing schemes have been built, is the informal urban phenomenon less, probably accommodating just 25 percent of the residential population.
In Syria informal urban development is very common, although the scale is not quite as prevalent as in Egypt. According to a 2008 study carried out by the German Technical Cooperation agency in Aleppo, of a total metropolitan population of 2.4 million inhabitants in 2004, over one million or 40 percent of the population resided in informally developed settlements, mainly on the southern and northern fringes. And it was estimated that the population of these areas was increasing at 4 percent per annum, compared to a citywide average of 2.9 percent. In Greater Damascus, with an estimated population of 4.1 million in 2005, informal development―mainly located in the many small municipalities of the Governorate of Rif Damascus that surrounds the city proper―probably already made up at least 30 percent of the total metropolitan population, and almost all additions to this population were occurring in these areas. Studies carried out by the Institut Français du Proche Orient and by World Bank consultants have shown the many means that informal land subdividers and individual builders used to circumvent the regulations of municipal agencies, in spite of the otherwise strict control that the Syrian regime imposes on society.
In the main cities of Yemen, informal urban development is not, strictly speaking, particularly prevalent, simply because there are few urban laws that are applied. On the books building licenses are required, but these simply involve paying a small fee and there are no subdivision regulations. The only planning mechanisms are the Detailed Neighborhood Plans drawn up in cookie-cutter fashion in central government offices. These offices are supposed to specify land uses and street alignments, but their main impact is to raise land prices. A study carried out in Sanaa by World Bank consultants in 2007 identified thirty-three fringe areas of the city that were the most deprived but also rapidly developing neighborhoods planned mainly by poor families. These areas alone contained roughly 21 percent of the then-metropolitan population of 2.4 million persons. However, in Yemen’s third city of Al-Hodeidah, where all fringe areas are state-controlled desert lands, a World Bank study in 2008 inventoried twenty-three very poor and deprived squatter areas and pockets that, together, already accounted for over 50 percent of the city’s 900,000 inhabitants. These informal settlements, which by any definition could be called shantytowns, are an exception to the norm in Arab cities.
It was reported in a 2005 World Bank document that 23 percent of urban dwellings in Morocco were informally constructed. Many more such dwellings could be found in fringe urban areas outside municipal boundaries. Most of this informal housing had been created by lotisseurs clandestins, or clandestine land subdividers, which has and continues to result in quite acceptable three- and four-story apartment blocks. A minority of this housing was to be found in dense single-story bidonvilles, or shantytowns, for the most part clustered in and around the Casablanca and Tangiers agglomerations. Following the suicide bombings in Casablanca in 2003, the Moroccan government launched a program called Villes sans Bidonvilles that targeted the elimination of these pockets through a relocation of inhabitants into new and expensive satellite towns.
In Jordan and Tunisia, urban informality is much less prevalent than in Egypt or Syria. In these small countries the scale of the problem has been less, governments have had—at least until the Arab Spring—stronger police powers to control development, and they had benefited from considerable financial and technical assistance from donors. Both countries have also carried out systematic upgrading of deprived neighborhoods, have well-developed housing mortgage systems and, in general, have been doing the right thing. Yet even in these two countries informal housing exists in many urban fringe pockets and anecdotal information points to a resurgence of unauthorized building in several peri-urban areas. This is especially true in Tunisia, where government figures for 2010 recorded only some 4,000 building violations being issued—representing 10 percent of annual national housing production. However, this seriously underestimates the phenomenon, since a huge amount of informal housing is being built on marginal land outside municipal boundaries or in zones not designated for residential use and not issued with violations, especially within the geographic orb of Greater Tunis.
Even rich, oil-dependent Arab countries are not immune to the phenomenon of informal housing, although the scale is considerably less, as certain anecdotal information shows from Saudi Arabia and Libya. For example, the devastating flash floods in Jeddah in 2009, which destroyed thousands of homes and caused at least one hundred deaths, exposed the fact that the whole affected area had been designated a flood wadi reserve but had been completely built over by low-cost, informal construction. A number of real estate developers and municipal officials were eventually jailed. And in 2009 the United Nations Human Settlement Programme (UN Habitat) engaged a consultant to assist the Libyan Urban Planning Agency to come up with a strategy to address the uncomfortable fact that masses of inhabitants of Tripoli were ignoring the city’s carefully crafted growth plans (again made by foreign consultants) and were leapfrogging south into the main agricultural belt where very nice homes and villa compounds could be built, illegal as this might be.
All informal housing in Arab countries has been built in the last forty or fifty years and, with a few exceptions, the informal housing stock is made up of multistory houses and small footprint apartment blocks that are remarkably well-built and durable. This fact sets urban informality in Arab cities dramatically apart from the shacks and shantytowns normally found in Asia and Africa and in most of Latin America. Some commentators have gone so far as to postulate that Arabs have a cultural affinity to make every effort to build solid housing that will last for generations, even if it is far beyond their means and even if it takes many years. It is true that tiny pockets of precarious shantytowns have emerged in some Arab cities, but in all cases these began as opportunistic squatting on marginal lands where land tenure is very insecure. The Arab norm, in contrast, is to purchase private agricultural land, thus land tenure is quite good and is recognized as so by the surrounding neighbors. Arabs are also known to squat on state desert land, but in large enough numbers that quickly provide a critical mass of people that confounds attempts by authorities to remove them.
An important feature of informal housing in Arab countries is that it is built or occupied mainly by low- to moderate-income families and, through the resulting market of units for rental or sale, represents the most affordable housing solutions to be found within Arab cities. It is sobering to think what the situation in Arab cities would be today had there been no informal housing.
There are many advantages inherent in informal housing processes. A small parcel of land can be found (which may not be the case in regulated areas), and the price per square meter will normally be much cheaper. The process is incremental, with land acquisition usually preceding construction by many years, and with construction itself being carried out in stages, that is floor by floor or even room by room. This fits well with family finances that are often irregular. There are no banks or government or corporate entities involved. The substantial extra costs associated with meeting subdivision and building codes can be avoided (procedural expenses and taxes as well as physical costs). A higher exploitation of land parcel is possible, in terms of building heights and floor-area ratios, than in controlled areas.
Furthermore, a family that manages construction itself can do away with formal contractors, employ unregistered laborers or relatives and shop for the cheapest materials. Studies in some countries have shown that under this owner-builder process construction costs can be reduced by at least 30 percent compared to fully compliant contractor-built housing. And since it is likely to be the builder’s family and his relatives who occupy the finished housing units, it is very much in his interest to ensure that the construction process results in a structurally sound building.
Although the creation of housing is the main aim of informality, another advantage of the process is that it allows for the creation of ground-floor businesses and workplaces. As informal settlements mature, considerable commercial, service, and even petty manufacturing activities become common, to the extent that in many such areas a very significant number of job and business opportunities are generated. And the high residential densities in informal areas support commercial life and, parenthetically, very sustainable pedestrian modes of transport. In other words, these areas do not remain marginalized dormitory settlements but take on most if not all of the heterogeneous attributes of urban life.
Still, it is important not to take an overly romantic view of informal urban areas and ignore the disadvantages found in many of them. The lack of any control means that the public interest—in terms of open spaces and parks, land for schools and other services, even minimally acceptable street widths—will suffer greatly. Also, over time an informal area can become seriously overbuilt, with many apartment units lacking sufficient air and light. And older areas may acquire a drab and monotonous appearance that affronts the sensibilities of those for whom the urban aesthetic is all important.
Allure of High Modernism
It should be obvious that the huge scale and continuing popularity of illegal or unauthorized housing in many cities of the Arab world indicate that something is lacking in state responses to the phenomenon. After all, informal urban processes have been around for decades and it would seem impossible for high-level government officials to ignore their massive weight. These officials themselves would likely say that they have in place strict laws and programs to prevent new informal housing and offer attractive alternative housing solutions to those of limited incomes, very much a carrot-and-stick approach. These officials might also add that they have adopted a policy of upgrading the infrastructure and services of existing informal neighborhoods wherever possible, and of relocating inhabitants to new housing estates if demolition and clearance are unavoidable. These responses sound quite logical, but their effectiveness throughout Arab countries has proven very elusive.
All Arab states have a large set of laws and related regulations, decrees and circulars that control urban development and construction carried out by private individuals and companies, in almost all cases using legislation adopted either from their former colonial masters or from European models. Building codes aim to ensure that buildings are safe and provide reasonable space, light and ventilation. Subdivision laws set minimum standards for plot sizes, road widths, utilities and public spaces. Urban plans designate allowed land uses, major rights of way for transportation and maximum building heights. (In some cases regulations may also specify particular building styles and facades.) In addition, there are laws that define private property and the means of its registration and transfer, and another set of laws that prescribe the evaluation and imposition of property taxes.
In all cases, this compendium of legislation specifies in detail the government agencies, committees and officials that are responsible for applying regulations and monitoring compliance, as well as the associated bureaucratic steps and fees. For most planning, subdivision and building rules, it is local government (municipalities for the most part) that are charged with such enforcement. It is they who are on the frontline, so to speak, in the struggle to prevent illegal subdivision and construction. Unfortunately, these bodies are almost invariably underfunded and their staff poorly qualified and grossly underpaid. Commonly, inspectors don’t even have access to vehicles to cover their large and growing territories. It is no wonder that they rarely inspect and that bribery is rampant. In fact, a position in building control departments is seen by many as a very lucrative post that is much sought after, however predatory it may seem. And in almost all countries once an illegal structure is finished and inhabited it becomes next to impossible to evict inhabitants, mainly because of the threat of resistance from the community and a cultural aversion to tossing people out into the street. It is no coincidence that informal housing tends to cluster together and creates a critical mass that makes collective eviction a political nightmare. And those building informally have learned how to circumvent the control system, even where it is applied. Building at night and during holidays is common, as is screening a building site from view or hiring gangs to block roads and create diversions. Sometimes people are paid to sit in unfinished buildings simply so they appear occupied. And building owners will take advantage of weak coordination among state authorities, for example by acquiring an electrical and water connection or a dubious title deed as part of a paper chase to prove legitimacy.
It is interesting to note that the only large and rapidly urbanizing Arab country where informal settlements were practically unknown, at least in the major cities, was in Iraq under Saddam Hussein. The main factor was his use of the country’s considerable oil wealth to develop extensive and heavily subsidized subdivisions and housing estates that practically all citizens could afford. But another factor that certainly discouraged official connivance of informality was the fact that corrupt practices in local as well as central government were punishable by summary execution.
In effect, the stick approaches that are applied by most Arab governments to prevent informality have been, shall we say, not up to the mark. But what about the carrot alternatives? Most Arab countries have national social housing programs that offer low-cost housing for families of limited means and in theory should represent an affordable alternative to informal housing. These programs have been in place for decades in Morocco, Tunisia and Egypt and to a lesser extent in Jordan and Syria. However, such housing schemes have never been on a scale that would come anywhere near meeting gross demand, and in any event the selection of beneficiary families has been bureaucratic and arbitrary, with those ‘most in need’ rarely qualifying. In the 1980s and 1990s social housing units in some countries were heavily subsidized, making them very affordable, but at the same time they represented a huge drain on national budgets. More recently, social housing programs such as those carried out by La Société Nationale Immobilière de Tunisie and under the Egyptian National Housing Program have shifted to become more financially viable, although the near-market prices of units have put them far out of reach of the lowest-income families and in fact have become attractive to the emerging, modern middle classes.
Another government mechanism that should in theory lessen the demand for informal housing are programs that provide financial packages to ease the burden of purchases on the formal housing market, usually through mortgage systems. Most of these imply subsidies and have limits imposed to help lower-income families qualify for modest units. These programs, along with the required legislation and a host of players (banks, brokers, assessors and foreclosure agents) have been in place in Tunisia and Morocco for decades and were emerging in Egypt in the 2000s. In every case these were based on Western models and have received considerable foreign donor support. Also, in every case they require registered properties, borrowers with steady incomes and strong enforcement of foreclosure. Only in Morocco and Tunisia have a significant number of lower-income families acquired housing units under these mortgage systems. In Tunisia this has been achieved mainly through the subsidized program Fonds de Promotion des Logements pour les Salariés; as the name implies, those without steady, provable incomes cannot apply. Also, Tunisia’s relative success was partly due to the simple fact that the market cost of borrowing was quite low and stable. In contrast, a main factor that has made mortgage finance unattractive in Egypt is that interest rates must be kept high, now well above 14 percent per year—which means that over the life of a mortgage a family will end up paying installments whose total value is over three times the cost of the dwelling. Another factor that makes housing mortgage systems unpopular, one that is found in all Arab countries, is an aversion to incurring debt, especially debts that are locked in for fifteen to twenty years. Religious injunctions against usury also discourage many.
The prevention of informal housing through laws and police power have had little success in Arab countries, and neither have programs that offer alternative, formal paths to affordable housing. Yet another determining factor that encourages informal housing is the high and costly standards implicit in formal planning and building control regimes. The physical standards relating to land exploitation and structures are themselves expensive to comply with, and additional heavy costs relate to the procedural requirements needed to conform fully with legislation. Seen from the point of view of a low- or even middle-income family, these costs are imposed without any apparent justification, and such extra costs seem superfluous in their herculean struggles to mobilize funds. It should be added that in no Arab country have simplified, lower standards been adopted for popular areas that would suit the small footprint and modest types of housing most prevalent under informal processes.
Empowering the Poor
Arab government responses to the informality phenomenon have been disappointing, to say the least. This is in spite of the fact that over decades a solid narrative has developed among Western academics and professionals that sees tremendous value in the informal dynamics of the struggles of individuals and families in the cities of the developing world to house themselves. This narrative influenced multilateral and bilateral aid agencies and led to a number of attempts to encourage governments to take a more nuanced approach to the phenomenon. Proponents of this approach argued that there are ways to harness the informal dynamic and guide it toward creating formal, legal neighborhoods where poor and moderate-income families, including small entrepreneurs, can progressively create affordable and appropriate housing at little cost to the state.
It could be said that the narrative began in 1966 with the appearance of a seminal paper by British urban planner John F.C. Turner called “Uncontrolled Urban Settlement: Problems and Policies,”prepared for the UN Centre for Housing, Building and Planning. Based on Turner and his team’s investigations of land invasions in Peru, the ideas soon gained international traction, and by the late 1970s and 1980s had spawned a number of programs and pilot projects supported by donors in several developing countries. These were mainly ʻsites and services’ projects on urban fringes where small land parcels were prepared with infrastructure for families to build their own dwellings progressively. Parallel initiatives were developed for in situ upgrading where existing informal neighborhoods were provided with lacking infrastructure and services and land titles, and only minimal or no demolition and resettlement. However, by the 1990s ‘sites and services’ schemes had fallen into disfavor, partly due to the reluctance of host governments to devote precious land and resources to them, and partly due to donor fatigue toward projects that took long time spans to succeed and which incurred a host of bureaucratic problems. On the other hand, in situ upgrading of slums and older informal areas has gained in popularity in many developing countries, usually with donor support.
In Arab countries sites and services had only a short life, mainly restricted to Egypt and Jordan. The first scheme spun out of the Ismailia Master Plan prepared by British consultants with financing from the UN Development Programme, in which Turner was involved. The main project, begun in 1978, was the Hay Al-Salam neighborhood developed on state land on the immediate fringe of the city. With only a small amount of foreign technical assistance, the area was fully planned and progressively developed by the Governorate of Ismailia for citizens to build their own housing with only minimal controls. Better called a ʻsites and then services’ project, it was a resounding success. The required infrastructure and services were largely auto-financed through land sales, considerable individual investment in housing was attracted, and the area grew to house almost 100,000 inhabitants within less than twenty years. In spite of this, the project had virtually no subsequent demonstration effect on the Egyptian government, which continued its romance with expensive new towns in the desert and with heavily subsidized public housing, in spite of the fact that at the same time informal housing was becoming the defining feature of Egypt’s urban landscape.
In the 1980s there were a number of sites and services neighborhoods developed by the Urban Development Department (UDD) in Jordan, with massive World Bank financial and technical support. These however were so bureaucratic that they practically killed the very informal dynamic they were trying to attract and were never replicated. Currently pro-poor policies of the Housing and Urban Development Corporation (the successor to the UDD) are restricted to housing finance and ways to stimulate low-cost housing production by the private sector. This last objective has recently become quite a popular approach in a number of Arab countries, but getting the private sector to build and market affordable housing units has everywhere proven almost impossible without significant subsidies.
It should be added that there was one successful sites and services project in Yemen. The Sawat Saawan project in Sanaa began in the early 1990s, was promoted and financed through a World Bank loan and included housing construction loans to beneficiaries, all of whom were government employees.
Urban upgrading has had a somewhat better track record than sites and services in the Arab world, although efforts have been nowhere near the scale required and areas that had been upgraded have frequently reverted to the old status quo. Only in Tunisia has such upgrading been comprehensive and notable for its success, mainly through the Agençe de Réhabilitation et de Rénovation Urbaine, although even it has been unable to keep up with the recent proliferation of informal areas in the peri-urban fringes of main cities. In Egypt foreign donors and a couple of elitist non-governmental organizations (NGOs) have tried various upgrading initiatives in a few informal neighborhoods of Cairo and Aswan, but these have had virtually no demonstration effect, and it seems that efforts have aimed more at advancing donor feel-good agendas of community participation than any concrete change on the ground. In Jordan and Morocco there have been small upgrading efforts promoted by the World Bank, and preparations for more were under way in Yemen prior to the uprising in 2011.
The recognition of the value of progressive informal housing as part of any solution to urban housing problems in developing countries is still alive and well, at least as part of the global development narrative. An admirable report was prepared by Patrick Wakely and Elizabeth Riley for the Cities Alliance (an arm of the World Bank) in 2011 called “The Case for Incremental Housing.” It argued convincingly that informal incremental development, where low-income people develop their homes and neighborhoods often to surprisingly high standards, can be justified in economic, financial, social and governance terms and, given the scale of the urban housing affordability challenge, is practically the only way forward. Unfortunately, as is often the case with development literature, it seems that this paper was largely a self-referential exercise among the already convinced. For example, of the twenty-two institutions referred to in the report, thirteen were donor agencies and Western universities, seven were international NGOs and institutes, and only two were banks or agencies in developing countries.
Curse of Ambivalence
The paradox is stark. Tens of millions of Arabs live in informal urban areas and millions more are added to these areas and to new ones every year. All indications are that the pace is increasing. Most of these areas suffer from a host of infrastructure, basic service and employment problems, not to mention poor transportation, near-total exclusion from political processes, the taint of illegality and at best condescension from a sizable segment of their fellow citizens. Virtually all past and present attempts by government, donors and NGOs to improve the livelihoods of residents do not affect more than a tiny fraction, and viable formal housing alternatives have and continue to attract only a miniscule subset of housing demand. At the same time more and more sprawling informal areas are being created on urban fringes, and it seems the only response is to subject them, eventually, to upgrading initiatives that are always too little and too late. And, we should add, until now the Arab uprisings, which have set in motion dramatic political changes in many ways, have not at all included any fresh approaches to the issue of informal housing.
How can this state of affairs be explained? First, it seems that most Arab governments are preoccupied, even mesmerized, by the physical appearances of modernity and look to Western cities or to dazzling Dubai, Singapore and Shanghai for inspiration and emulation. In the past some may have looked at the ordered regimentation of socialist cityscapes as models, but now all faith is put in the miracle of the corporate real estate sector—both domestic and transnational—to build and transform their cities, especially if such transformation is bankrolled by Gulf Arabs. The needs of a city’s common people may receive grudging attention in government pronouncements, but the messy, chaotic and complicated reality of urban informality is the antithesis of the kinds of urban order that in a modern city should prevail. Better to ignore or wish away the phenomenon and concentrate on what can be controlled: formal, mainly corporate modes of urban planning and development. And better to frame urban informality as simply the product of those who are ignorant, uneducated and backward.
This, in a way, is understandable. The legitimacy of an Arab state, as the vanguard or at least the guiding hand of progress and development, is entwined with the application of its laws and norms. By definition informal urban processes contravene a host of these, and what government wants to explicitly admit that it has lost control? In addition, important sectors of the economy depend to a large extent on the demand created by formal urban development and the cozy relations with government such development generates. From construction to manufacturing and from finance to the professions—those who are part of these sectors can be counted on to enthusiastically support the state’s rejection of and biases against informality.
But these are not sufficient explanations. Why have the considerable efforts of the international community over decades to influence the policies of Arab governments had so little traction? One can understand the mindsets of older officials in government structures who are incapable of absorbing uncomfortable ideas that do not come directly from their superiors and for whom informal areas are an anathema that cause nothing but headaches. But younger professionals both inside and outside government have been heavily exposed to the alternative narrative. Not only have innovative urban projects that demonstrate how to accommodate informality been supported and financed by donor agencies in most Arab countries, but large and continuing efforts have been made by donors and institutes to train young Arab architects, planners and engineers to grapple with the complexities of rapid urban growth. Thousands of such degree holders have either gained graduate educations from Western universities or have been sponsored to attend diploma courses in specialized institutes in such places as London, Rotterdam, Berlin and Cambridge, Massachusetts, usually with the specific aim of returning to their countries with their newfound orientations. Some universities in Arab countries have recently also launched similar courses. Moreover, donor agencies have, under the rubric of capacity building, sponsored thousands of in-country as well as out-country training courses, symposiums and conferences on effective tools and policies of sustainable urban development, to which key municipal and ministry officials are always invited.
And what are the results of all this education and capacity building? The more astute Arab professionals with graduate degrees—who demonstrate an understanding of urban complexities and have good foreign language skills—are usually quickly employed by international or bilateral donor agencies themselves, where they pursue comfortable and rewarding careers. But for others, it seems whatever new orientations they might have acquired are quickly lost or put aside upon their return to their countries or to their old jobs there. There is simply no appreciative audience, and their career prospects, whether in government or more often in local consulting firms and academia, are not likely to benefit from propounding what only the very few want to hear. In any event, it is extremely rare that they are in a position to influence urban policies. After all, the real decision-makers are either non-professionals—usually former generals, successful businessmen and parliamentarians—or engineers who are already members of the ruling political elites. It is precisely these people whose accumulation of power depends upon their obedience to the modernist ethic and the conviction that only the corporate system, sometimes in combination with the army or super-state agencies, can deliver it. One needs only to look at the hyper-modern urban makeover schemes and mega projects that have been advanced for Cairo, Tunis, Amman, and Damascus to see where most attention of those in power is placed.
Of course there are dedicated academics and professionals in every Arab country who recognize that the high modernist status quo will never address the real issues of Arab cities, but these are few and their voices are rarely heard. One can only hope that freer environments and new political spaces coming from the Arab uprisings will allow for a more appreciative audience. And one also hopes that the same expanded political space will allow the disenfranchised scores of millions who live in urban informality and who are—or soon will be—the majority of the potential electorate in many cities to fully articulate their demands. After all, isn’t social justice what these revolutions are all about?
David Sims is an economist and urban planner with forty years of experience in Arab, African and Asian countries. He is the author of Understanding Cairo: The Logic of a City Out of Control.
A Garden in Cairo
The Aga Khan Trust for Culture sponsored a conference in Egypt in 1984. It was called “The Expanding Metropolis: Coping with the Urban Growth of Cairo.” There was an urgent need for more green space in the city. One study had found that the amount of green space per inhabitant in Cairo, the center of the largest metropolitan area in Africa and the Middle East, was the size of a single footprint. At the conference, the Aga Khan announced his intention to finance and create a park in the city.
The task ahead was formidable. The available space was a thirty-hectare site in the Islamic heart of Cairo. It was surrounded from the north and west by poor, densely populated neighborhoods dating from medieval times and noted for their mosques and other architectural treasures, and from the east the City of the Dead, a sprawling fifteenth century cemetery. The site had been a rubbish dump since the late Mamluk period; indeed, over hundreds of years, the accumulation of garbage and building debris was nearly forty meters deep in some areas. After six years of work, Al-Azhar Park opened in 2004 to international as well as local acclaim. The initiative includes not only a vast green space for the people of Cairo, but the restoration of Islamic historical sites, revival of ancient crafts and revitalization of adjacent neighborhoods. “The result is an urban vision that is startling in its scope,” wrote New York Timesarchitecture critic Nicolai Ouroussoff, who praised the project for “reversing a trend in which unchecked development has virtually eradicated the city’s once-famous parks.”
The context served as a challenge to revitalize the heritage of Islamic Cairo and use it as a catalyst for cultural, social and economic development. In other words, it was clear that the construction of the park should act as a stimulus for the rehabilitation of the Al-Darb Al-Ahmar neighboring district and its 200,000 residents. The Aga Khan Trust for Culture (AKTC) initiated projects that would uplift the living conditions in the vicinity of the park. However, Egypt’s notion of environmental improvement was new, untested and limited to planting trees in a few streets. The government was skeptical about the project even after granting approval for the site.
Other challenges included the lack of environmental awareness and understanding of the profession of landscape architecture in Egypt: even today, there are no Egyptian academic institutions offering a degree in landscape architecture. The building industry does not supply quality products for use in outdoor space. In addition, there are no specialized contractors that are qualified to execute proper landscape works.
Design and Construction
The design of Al-Azhar Park was initiated in 1998. To form the main guiding principles for the park design, AKTC worked with several design firms including Sasaki Associates of Boston. Sites International was appointed as the lead consultant to take on the central organizing role in the development of the final master plan and landscape architecture design of the park. There were several design and construction challenges: the historical context of the old city and Islamic monuments; the serious geotechnical limitations of a soil unsuitable for planting or construction; the existence of three water tanks on site supplying water to Cairo; and the lack of local commercial plant materials and landscape products. Recognizing these challenges, our vision was to develop a paradigm shift in public space design and education in Egypt.
The first visit to the site was a nightmare; hills of garbage and construction debris were all over the site. Soil would reach up to your knees as you walked. The historical wall to the west was buried under the garbage, and the scene of three large concrete water tanks, each eighty meters wide, was depressing. There were no signs of life on site; no plants and no birds.
During the earthwork of the site’s western slope descending toward the Al-Darb Al-Ahmar district, crews uncovered the Ayyubid wall built by Saladin in the twelfth century to defend the city from the Crusaders. The 1,500-meter wall represented the new urban edge for the project after being restored from rubble. The existence of the wall fostered the notion of utilizing the park as a panoramic platform from which to view the heritage of old Cairo, and to create a historic wall promenade along the park’s perimeter.
The geotechnical survey revealed a soil profile of thirty to forty meters of garbage, construction debris and highly toxic/salty soils unsuitable for construction or planting. Over 765,000 cubic meters of soil were removed and 160,000 cubic meters were used as a fill elsewhere on the site. A further 605,000 cubic meters were geotechnically treated and mixed with 60,000 cubic meters of special sand and topsoil. Soil replacement created a layer of good soil ranging from a half to two meters deep. An impermeable clay layer 0.5 meters thick, placed two meters beneath the top soil, was added to prevent irrigation water seepage and soil settlement. Raft foundations or pilings were used beneath buildings. Roads and paths were built on structural fill ranging in depth from one to two meters.
Earlier in the planning stages of the project, the General Organization for Greater Cairo Water Supply announced its intention to install three underground water reservoirs on site. Each reservoir is eighty meters in diameter. The reservoirs had to be placed on significant piling. Furthermore, the insertion of such a system increased the constraints and risks to the infrastructure. This also prompted the landscape architects to provide maintenance access to the reservoir tanks and distribution lines. The authorities prepared a set of design guidelines for common areas between the park design and the reservoir system. Landscaping the three water tank tops required careful and detailed consideration of the tanks’ structural limitations and waterproofing.
Sites International developed an indigenous and adaptive plant list for the park, detailing species and required sizes at installation. More than 650 species were planted in Al-Azhar Park. Palms, trees, shrubs, citrus groves and ground covers play a functional, visual, aesthetic and environmental role. For example, the palms contribute in defining the linear space and orienting pedestrians toward the impressive view of the Citadel; Cassia nodosa trees with their flowering canopies were used to mark the major walkway to the Citadel View restaurant. Greening the site posed some unique challenges as chemical property tests confirmed low levels of nutrients, high levels of alkalinity, very high levels of salinity and Ca CO3 content. Thus, the need for appropriate soil conditioning was a major issue for some plants to survive. Drought tolerance, soil stabilization and erosion prevention were key plant selection criteria, and complete subsurface drainage was needed to protect the historic wall from any runoff.
Most plant materials were not commercially available in Egypt, in either the required quantity or size. Thus, a limited on-site plant nursery was established for horticultural testing and a larger off-site nursery was established to support the main stock. The off-site nursery was created in early 1998 on a twenty-hectare plot. It yielded all the required species and quantities needed for the park.
Almost everything for the park—furniture, lighting, bollards, seats, trash receptacles, drinking fountains, playground equipment, pergolas—had to be custom designed by the landscape architect and manufactured by local artisans. In the process, artisans reclaimed some old techniques in stone work that had almost died out.
The strategy of AKTC and Sites International was to divide the work into two parallel tasks. First, to address the site limitations, including the poor soil, the historical wall, the concrete water tanks, in addition to addressing the issue of poor supply of plant materials, especially trees, in local nurseries. Another immediate issue was the poor quality of local site furniture and lighting. The second task was the detailed planning and landscape design. This included creating several alternatives, obtaining approvals and testing prototype areas on site. This would be followed by preparing complete construction documents for the park design.
Given that all this was pioneering work with many unknowns to be encountered, it was agreed that the design could evolve and change over time to adapt to constraints and opportunities.
The design intent was to provide green open space for the residents of the adjacent districts and the greater Cairo population, and to utilize local artisans and laborers in the construction of the park as an effort to improve their economic status. The design theme was derived from the contextual historical Islamic heritage of old Cairo, a distinctive interpretation of the Islamic garden design criteria. The design was equally keen to protect and incorporate the historic wall into the park.
The main pedestrian spine is the key feature of the park, running north-south. It is characterized by sophisticated geometric pavement patterns, accentuated by various water features; fountain bowls, and narrow water runnels. The axial boulevard also incorporated rows of palms, aromatic plants and shade trees. On both sides of the main spine are secondary walkways with secluded sitting areas as well as sunken gardens and citrus orchards. The series of geometric, sequential gardens blend meaningfully with the curvilinear and rolling topography of the site, creating an oasis-like feeling of freshness and greenery.
Since the planning theme of the park was derived from the heritage of old Cairo, the main spine is directed to a view of Cairo’s Citadel and Mohammed Ali Mosque. To further integrate the context, original gates of the Ayyubid wall served as a major entrance to the park from the Al-Darb Al-Ahmar district.
AKTC created a local Egyptian company, Aga Khan Cultural Service of Egypt, to maintain and operate the park, the idea being that the park be economically sustainable. Furthermore, AKTC aimed to implement the Islamic endowment system, using income to sustain the running of public facilities. Thus, income generated from tickets, parking and restaurants in the park is used in maintaining the facility and helps support urban rehabilitation projects in the adjacent neighborhood. A large staff was hired including personnel for security, gardening, irrigation, fountains and food outlets. Al-Darb Al-Ahmar residents were given priority in hiring.
The success of the Al-Azhar Park is the result of the environmental revitalization of the land in addition to the rehabilitation of the adjacent district. The project is a physical translation of cultural, social and economic development.
The park is considered an urban intervention that successfully addressed the context of the Al-Darb Al-Ahmar district. It saved the surrounding urban fabric by giving it a future and creating jobs for residents of the neighboring district. Furthermore, the surrounding cultural monuments and homes were renovated with the aim of improving the overall urban fabric. At the micro level, the community prioritized a list for refining the district; training programs were developed, houses were rehabilitated, micro projects were financed. At the macro level, Al-Azhar Park is viewed as a green oasis serving the Al-Darb Al-Ahmar district, old Cairo’s historic sites and indeed the city at large.
Despite the numerous green areas of the park, it conserves water resources. A water irrigation system optimizes the use of water and arid plants that consume far less water than lawn areas were used.
The park is a recreational space for the community and the Cairene society to gather and perform activities in a welcoming green space. It has become a destination for tourists and an educational botanical garden visited by students from planning, architecture and agriculture schools. It provides a wide range of activities in its playgrounds, gardens, walkways, restaurants and amphitheater. The park has proved to be a success and a source of pride for Egyptians.
Maher Stino is principal partner of Sites International, a consultancy with projects in Egypt, Malaysia, Pakistan, Saudi Arabia, Syria, and the United Arab Emirates. He is a professor of planning and landscape architecture at Cairo University.
The Nature of Cities
Cities are the places where people have most modified nature. Buildings protect people from extremes of heat and cold by air conditioning. Vegetation is managed by elaborate planting, watering and fertilization systems. Introduced and invasive species often dominate, if not overwhelm, native ones. Rivers are channelized, embanked and diverted. Water supplies are pumped from deep aquifers and piped from distant reservoirs, often hundreds of kilometers away. Health care systems, albeit variable in effectiveness and accessibility, protect much of the world’s urban population from the worst communicable diseases.
Urban areas are often comfortable, congenial and civilized places in which to live, yet urban dwellers ignore nature at their peril. History shows that large modern cities are vulnerable to extreme events. To recall a few recent examples: Hurricane Sandy on the east coast of the United States in 2012; the 2011 Tohoku earthquake and tsunami in Japan; the fires in Dhaka in 2010 and in Manila in 2011; the Eyjafjallajökull eruption in 2010 that left an ash cloud over Europe; the list could go on and on. Meanwhile, every day nature affects our urban lives through disease vectors; rain, sleet and snow; floods and droughts; heat waves and cold snaps; landslides and subsidence; tree falls, weed and mold infestations and insect pests.
To cope with all these natural events, cities have to be well managed and well governed. The degree to which individual cities can provide security and protection for their inhabitants is in part related to the severity, magnitude and frequency of natural events; in part influenced by the extent to which buildings and infrastructure are able to withstand those events; and in part dependent upon the resilience of urban society. The latter comprises its ability to adapt to both abrupt major events and to the slower more gradual changes, such as the consequences of local urban growth and land-use change and of global economic, technological and environmental change, especially climate change. Improving urban conditions requires taking a holistic view, seeing the problems at a range of scales from the individual household to the whole metropolitan region, appreciating the relationship between an individual’s daily activities and the changing character of the city, and realizing how altering one component of the urban environment affects a whole series of other aspects of the built-up area.
The Wu Xing
In modern municipal administrations, responsibilities are usually divided into strict professional departments, with planning and environment frequently separated from public health, education, finance and engineering. Addressing environmental issues usually requires cutting across these departmental divides. Today many urban managers, designers, planners and scientists are looking at cities as complex social-economic-natural ecosystems in which political, social, cultural and economic phenomena interact with the components of the natural environment.
Societies have long recognized the importance of such interactions for human health. In the eleventh century, the Persian scholar Avicenna (Abu Ali Al-Husayn ibn Abdallah ibn Sina) wrote in his Canon of Medicine of the four humors: hot, cold, moist and dry, which were related to the weather. Medieval Europeans described the four humors as blood, phlegm, yellow bile and black bile, again relating them to the seasons, but also to elements of nature.
This four-fold division may be compared to the five traditional elements of the Chinese Wu Xing: water, metal, earth, fire and wood, which are used as the natural subsystem framework for analysis of complex urban systems in China. In the United States, much recent research has explored the nature of coupled human-natural systems or urban socio-eco-biophysical systems, because the understanding of urban life gained from the social, behavioral and economic sciences has to be linked to ecological and earth surface processes; the latter to explain how nature works in cities under complex human influences. This approach helps to develop workable reactions to nature’s responses to urbanization and the effects of environmental change on urban inhabitants.
In the current Chinese social-economic-natural complex ecosystem approach, which uses the Wu Xing in a modern context, the five natural elements form a physical subsystem, with economic, social and scientific subsystems as well. The core subsystem features three elements with which to deal with the Wu Xing: knowledge, culture and institutions. These three elements may be considered to represent the key human drivers of urban change and management. Knowledge embraces science and technology together with traditional understanding and community awareness. Institutions range from governments to corporations and professional and influential civil society elites, and include urban management systems and non-governmental conservation and environmental organizations. Culture embraces lifestyles and family life (which dictates size and type of dwellings), as well as the way residential preferences and attitudes to nature affect the character of the built environment and the types and amount of urban green space. Human use of natural areas within and around cities varies greatly with social factors including age and ethnicity.
The multiple environmental tests faced by modern cities need long-lasting sustainable responses that often require thinking over much longer timespans than those between democratic elections of mayors or municipal councilors. The knowledge available to municipal institutions is abundant, but not always in a form that busy people can rapidly assimilate.
The five Wu Xing natural components can be taken to deal with five critical spheres of urban and global change: the atmosphere (fire or energy), the biosphere (wood or life), the hydrosphere (water), the pedosphere (earth or soil) and the geosphere (metal or minerals). These spheres overlap; water, essential for all life, is found in the atmosphere, the pedosphere and the rocks of the geosphere. Nevertheless, they offer a workable framework within which to organize discussions about urban environmental challenges.
Element 1: Water
An essential factor in the location of urban areas is drinking water. Most ancient settlements were located on rivers or by springs. Many inhabitants sunk wells and found groundwater within a few meters of the surface,while the Romans constructed great aqueducts to carry water to the majority of their cities. By the twentieth century most large cities depended on remote sources, such as the surface water Mono Lake supply to Los Angeles; the 2,820-kilometer Libyan network of pipelines carrying fossil groundwater from beneath the Sahara to coastal towns, cities and farms; and the approximately 900-kilometer Ras Azzour to Riyadh pipeline, planned to convey one million cubic meters per day from the world’s largest desalination plant, to be located on Saudi Arabia’s Arabian Gulf coast. Even so, many cities have inadequate supplies, with piped water not available twenty-four hours a day, and many dwellings having, at best, a standpipe or well within a few minutes’ walk. The quest for safe, clean, reliable, accessible, affordable water remains. Combinations of water sources, such as surface water from rivers, groundwater, rainwater harvesting, desalination and water reuse are being adopted in many Asian cities, both on a well-planned municipal basis (as in Singapore) or by a combination of public supply, private enterprise distribution, individual household and business rainwater harvesting, and well sinking (as in New Delhi).
Even more serious is the provision of safe sanitation. Over the period from 1990 to 2013, globally 1.9 billion urban and rural people gained access to sanitation. However, around 2.4 billion people will be using unimproved, inadequate sanitation facilities in 2015: not much of an improvement over the 2.7 billion doing so in 1990. Although much of the improvement was in towns and cities, the trick is to do more than keep pace with the growth of global urban population.
The other side of the water challenge is to deal with water excess. As the world’s urban population has become increasingly located in tropical regions―because the only areas in which they can find land to build homes are in floodplains prone to heavy thunderstorms, cyclones and rapid storm-water runoff, more and more people are becoming exposed to flood risks. That the urban areas are paved or roofed only increases the risk of local flooding within specific areas of the city. Such impacts are arising in cities everywhere, but ways of reducing them exist, particularly in terms of sustainable drainage systems, where the passage of water is slowed down and infiltration is encouraged.
Element 2: Metal
The Wu Xing element metal (or minerals) includes materials such as concrete, brick, glass and steel used to build, furnish, decorate and ornament urban areas. Concrete is particularly important as it is used for most of those paved surfaces that accentuate flood risks, but is also part of flood control systems in terms of urban drains and river flood walls. Abstraction of these minerals means new uses have to be found for quarries or gravel pits. Significantly, the topsoil from brick pits in China is put aside and later used to recreate agricultural land at a lower level after the brick clay has been removed. Success in reducing mineral raw materials use for urban institutions will require applying the available knowledge of alternatives to concrete drains and flood walls. This will involve particularly utilizing green infrastructure by installing green roofs, grassed suburban waterways and more natural urban rivers, including the converting of concrete channels or the reopening (or daylighting) of small streams that were diverted into underground pipes when the city first expanded.
Recycling of construction and demolition waste is becoming widely adopted on a commercial scale, particularly in large cities where transport costs are high. On another scale, many poor rag-picking communities in South Asia are finding ways of using other people’s waste materials to create building components, such as walls made of glass bottles or flooring made of broken crockery. More advanced materials reuse technologies including utilizing power station fly-ash for brick substitutes and making plaster board alternatives out of pressed and glued fragments of waste material. Although these forms of reuse are commercially viable, cultural constraints sometimes prevent their adoption. Several British supermarkets say they will not use recycled materials for fear of contamination in their buildings.
Element 3: Earth
Earth relates to soils and to the ground on which the city is built. Many cities experience geomorphological problems such as landslides, subsidence and soil erosion. Often these risks are not widely understood and purchasers of property may not always know of their existence, particularly in cities where the events happen infrequently, or generally only occur when the ground is disturbed and local conditions are altered by construction activity. Cities with frequent landslides, such as the Los Angeles and San Francisco areas, often have detailed landslide hazard mapping. Hong Kong has developed a highly sophisticated geotechnical control system to reduce landslide risk when building on steep slopes. Helped by detailed computer mapping systems and databases, this planning and building control system has reduced actual landslide damage considerably. Other cities with similar geology and deeply weathered rocks have begun to adopt some of the general principles, but elsewhere lack of information and building control means that unwise excavations on landslide-prone terrain continue to put urban lives at risk.
Subsidence is a persistent problem that is often aggravated by urban development, mining and groundwater extraction. Bangkok, Venice and Mexico City have frequently suffered flooding as a result of irregular lowering of the ground surface through groundwater removal. Restrictions on pumping and on unlicensed wells can help to alleviate the situation. Mining for coal, salt and other minerals also often leads to subsidence, long a problem in old coal mining areas in Europe and North America. More difficult to cope with is the subsidence due to subsurface cave collapse in soluble rocks such as the frequent sinkhole formation events occurring in limestone in Florida. Again, careful geological survey and building design can avoid the worst of these risks.
The major volcano hazards threatening many cities are partly predictable by close seismic monitoring of earth movements around the volcano. However, earthquake prediction remains difficult, but effective earthquake emergency response training and evacuation procedures can save lives. Good earthquake building codes and building control measures can help to save even more lives. Tsunamis caused by earthquakes are likely to become more threatening to coastal cities as sea levels rise as a consequence of global warming, making existing sea defenses less effective.
Element 4: Fire
Much of the current global warming is related to fire, to energy consumption, particularly the use of fossil fuels in all types of machinery including air conditioners and heating boilers—and the release of greenhouse gases and heat into the atmosphere. The extra heat keeps large city centers four or more degrees centigrade warmer than adjacent rural areas. However, large parks, such as Hyde Park in London, reduce the heat island intensity locally. This suggests that by careful planning of urban green spaces, heat island temperatures can be lowered over larger areas. Many cities are encouraging the creation of green roofs and establishing more parks and street trees in an effort to reduce heat stress on hot days and to gain other health benefits through exercise and recreation in the open air.
Urban energy consumption has long had health consequences through air pollution. Much of the smoke and sulphur dioxide from coal burning that affected Western cities until the mid-twentieth century has gone, but has been replaced by new problems due to oxides of nitrogen and photochemical smog associated with the widespread use of oil and gas. Now extremely fine particles emitted from diesel engines are seen as a major health issue. Rapid expansion of motor vehicle numbers and traffic congestion has made such air pollution so severe in rapidly industrializing cities of Asia and South America that measures to restrict car use have been attempted. Urban traffic management remains a headache for most cities despite massive investments in urban rapid transit systems and bus services.
Congestion and long queues of vehicles with their engines running are common problems in Asia from Istanbul to Beijing and are growing in Africa from Cape Town to Cairo. Road pricing and congestion charging are unpopular, although often effective, because the private motor vehicle gives the driver the freedom to travel, but that is also the freedom to pollute.
Urban air pollution affects all living things within urban areas and far beyond, having significant impact on agriculture as contaminated soils and plants will affect food supplies. Further afield it has damaged forests, corroded iron work and acidified lakes. In this way we can think of cities as having a pollution shed, or contaminant fallout zone, extending well beyond the metropolitan boundary, especially where carried away by the prevailing wind. The spread of acid rain across northwestern Europe in the 1950s and 1960s showed how urban emissions can become a transboundary problem, with the consequence of energy consumption in one country being felt in another. International agreements can sometimes cope with such issues, but the difficulties of getting a global agreement on lowering greenhouse gas emission show just how hard this task can be, regardless of how urgent the problem is. Some international coalitions of city mayors already indicate a greater willingness of some municipal authorities to collaborate than their national governments have done.
Such external impacts of urban environmental problems now extend to the heart of the Pacific Ocean, where a great gyre of finely comminuted plastic, dubbed the Great Pacific Garbage Patch, threatens marine life. Some estimates say the debris field is twice the size of the continental United States. Reducing these far-reaching externalities is a collective urban problem that may be forgotten among more immediate local issues, particularly as the voices of the small Pacific Island states most seriously affected by damage to life in the oceans and by rising sea levels are seldom listened to in international meetings.
Element 5: Wood
The Wu Xing element wood implies the whole biosphere and all forms of life. The main environmental concerns faced by city administrations often relate to human well-being and social care, public health, to the avoidance of epidemics and the impacts of disasters such as earthquakes. World Health Organization environmental standards help urban managers to recognize when problems such as air pollution are most severe, but sometimes economic and social considerations make the adoption of the most effective alleviation and control measures difficult. Measures such as mass immunization, avoiding contact with zoonoses (infectious diseases, such as rabies, that are transmitted between species, sometimes by a vector, from animals other than humans to humans) and preventing the transmission of viral infections are not always effective in every major city. The zoonosis West Nile virus appeared in the United States in 1999 in the New York City area and spread rapidly across the country in 2002. Urban practices and conditions such as the sale of live animals in many Asian markets greatly affect the transmission of zoonoses. With malaria and dengue fever remaining problems in many tropical areas, despite large international campaigns, climate change may lead to such diseases moving poleward, reappearing in cities from which they have long been eradicated. Urban authorities and health institutions must be able to detect and control such events rapidly.
Urban environmental conditions and diseases also affect other urban animals and plants. Bird and mammal survival in urban environments is affected by collisions with manmade objects, food acquisition, predation and disease. Over decades, many urban animals adjust to urban conditions, showing physical, behavioral and genetic differences from their rural cousins. Small creatures adapt and evolve more quickly than larger organisms. The way that dark peppered moths (Biston betularia) survived in the soot of industrial cities demonstrates how selection and evolution in cities can lead to distinct differences between urban and rural animals. Changes can be difficult to spot; for example, white blood cell (monocyte) counts are higher in house sparrows (Passer domesticus) in urban areas than in rural areas, suggesting immune system adaptation to the urban environment.
The food urban people put out for birds and other animals helps to stabilize small bird populations and to make predatory mammals more numerous. Nonetheless, urbanization tends to reduce the numbers of large mammals, such as coyotes in the United States. This allows meso-predators, such as domestic cats, more opportunities to hunt, leading to the deaths of many of the most abundant urban birds, with feral cats hunting more often than free-ranging domestic cats. At the same time, there are concerns about the impact of agricultural chemicals in the urban environment, with pesticides and herbicides influencing bird populations, both directly and indirectly, by affecting birds’ growth, development and survival. Some insecticides have had profound effects on predatory bird populations, such as the sparrow hawk, but others have been used for decades with no apparent impact on non-target organisms.
Complex chemicals in the urban environment remain a major problem, with huge quantities of pharmaceuticals being used every day. The world’s chemical and biomedical companies are constantly searching for new products, materials and medicines. The outcomes of their research and development help people everywhere to improve their lives, avoid and recover from disease, grow higher-yielding crops and manage plant and animal pests and diseases. Many characteristics of these chemical compounds alter other chemical and biological processes and these substances can enter food chains, particularly those of aquatic ecosystems, into which they are carried by rainfall, sewer overflows, and releases from unregulated manufacturing and farming activities. Not all pharmaceuticals are removed in normal sewage treatment and their residues may be consumed by microorganisms in river waters and thence by invertebrates that eventually are eaten by fish, which may be caught for human consumption, or eaten by larger fish that are harvested for human food. Evidence of serious problems for human health from such contaminants is patchy, but their effects on fish are well-documented.
Chemicals are becoming a significant problem for water supplies and for the management of fisheries in waters (lakes, ponds, reservoirs, canals or rivers) in and around towns and cities, particularly those close to megacities, and large industrial and transportation complexes. These chemical compounds are part of the urban circulation of chemical elements, but many national or municipal environmental monitoring agencies do not yet have either the means to test for them or sufficient aquatic sites at which to monitor their concentrations. Many of these compounds are known as persistent organic pollutants (POPs) and have been found in high concentrations in fish off river mouths. They are also carried by winds to agricultural areas so that the global extent of food transfers means the POPs entering a food chain in one region may be carried to urban areas remote from both their source and the locality where they first accumulated in plants. Each individual city and each individual chemical user in that city, at home or in industry, has a potential impact on the global movement of potentially harmful chemical compounds.
The task is to raise awareness of this invisible environmental problem and to take measure to avoid accidental or unintended releases to air, water or soils. This again is in part an issue of personal freedom to use pharmaceuticals, beauty products and other toiletries against reducing the risk of contaminating the environment and affecting food chains. Governments can only legislate to curb the most severe risks, but other impacts, such as the careless disposal of chemical compounds, have to be reduced through education that enhances individual responsibility and awareness of potential side effects.
Another important aspect of biota in the urban environment is the use of greenspace for physical and mental health improvement. Contact with green space, even viewing it from a hospital window, can improve mental health and feelings of well being, while physical exercise in open space is sometimes prescribed by doctors as an alternative to taking more pills. These health benefits are one reason why local authorities in countries such as the United Kingdom have set open space accessibility standards, suggesting criteria such as there should be a green area within ten minutes’ walk or 600 meters of every home. Public housing developments are often good at providing some open space, for example Singapore features open-space facilities for children’s play within all its public housing developments. Open-space requirements may be imposed on private developers, but sometimes the space they provide is awkwardly situated, near road intersections or relatively inaccessible, and not suitable for children’s play or human relaxation.
Multiple benefits are gained from well-located urban open spaces, particularly those with trees and other vegetation. They improve health, reduce the urban heat island effect, trap some pollutants, provide habitat for animals, support biodiversity, can be parts of sustainable drainage systems and enhance the visual attractiveness of towns and cities. Ideally such green spaces are parts of green networks, or the green infrastructure of urban areas, helping to provide a series of interconnected patches and corridors facilitating the movement of both wildlife and pedestrians, be they walkers, cyclists or horse riders. In many countries the principle of having such greenways or green infrastructure plans is well developed, excellent examples being found in the Netherlands and in Germany.
Our Grandchildren’s Children
The consideration of the five Wu Xing elements has led us to see that they are indeed highly interconnected. Living in the city means that we are constantly using the benefits, and sometimes the disservices, that they bring. We cannot ignore the character of the air above us, the vegetation, animals and insects around us and the ground beneath us any more than we can ignore the changes of the traffic lights or the ringing of our cell phones.
What we also have to be aware of is that ways of meeting these challenges do exist. In rapidly developing urban areas, opportunities to forestall problems are found both in the construction of new urban areas (as in the Tianjin Eco-city in China that is being built in collaboration with Singapore) and in the way old cities (like Freiburg, in Germany) have been converted into much more sustainable places through a series of planning measures and retrofitting old buildings.
The brilliant 2008 Brunel Lecture by Peter Head demonstrated that existing technologies could make existing urban areas more sustainable and cut greenhouse emissions by 80 percent, by retrofitting buildings and changing transportation, water, energy, and waste management systems. Cities would have comfortable zero emissions mass transport; water collection, storage and recycling systems with separate potable and grey water mains. Organic waste fed to biodigesters would create both energy and compost for urban food growers. Buildings would be heated and receive hot water through district combined heat and powers systems, while much renewable energy would be generated by large scale desert solar, tidal power and wind turbine installations. Distribution of goods and many human needs would be greatly assisted by smart information systems. The ideas and technologies exist, the willingness to change behavior, make appropriate political decisions, and to act collectively for the benefit of future generations is less evident.
The key to the urban future is first of all to ensure that new developments are more environmentally friendly than in the past and that the mistakes already made are not repeated. Secondly, we have to retrofit both for sustainability, and to mitigate and adapt to global climate change. The technologies are there, from household solar panels to community-combined heat and power, from window boxes to urban greenways. Integrated, holistic lateral thinking is required, along with political emphasis on solving present problems through techniques that will make urban living better for both present and future generations. Sustainability is all about thinking of our grandchildren’s children.
Thinking about and addressing urban environmental problems has to occur at all levels, from the individual and the household to the local community, the individual district or local authority, the metropolitan government and the whole urban region including the surrounding countryside intimately linked to the major city. Improvements are achieved through both small things and major schemes.
Changes in habits—such as levels of home cooling or heating, reusing goods or recycling of things no longer required, walking rather than driving—contribute to better health, urban heat island effect reduction, slashing greenhouse gas emissions and cutting back on use of raw materials. Achieving similar behavioral change in the workplace adds to the benefits. Community schemes for recycling furniture, composting garden waste, growing vegetables and even removing litter from drains all assist in reducing some of the problems of materials use, energy consumption and storm water flooding. This emphasizes that people can do things for themselves and often can take a lead that prompts local government into action.
Equally important is the initiative taken by individual elected councilors to promote environmental action through their local authorities. Mayors have been particularly effective in some cities, exerting political leadership to reduce the environmental impact of their municipality’s operations and encouraging local businesses and the community to do the same. Some introduce fines to discourage practices such as increasing paved areas around homes: Hamburg charges for every square meter of extra impermeable paving put in place, in order to reduce storm water flooding. Governments can show similar leadership. Taxes can be used positively, for example the UK Landfill Tax has forced local governments to greatly improve recycling rates. Charges for plastic bags in supermarkets reduce plastic waste while deposits on bottles encourage reuse and feed-in in tariffs for renewable energy encourage non-fossil fuel electricity generation and prompt power companies to use biomass. Equally, the planning of urban green space and green infrastructure can change the character of urban areas and provide multiple benefits for local climate, water management and biodiversity.
Such measures can be found in many cities, sometimes as part of an integrated move toward sustainability, but too often they are piecemeal responses to a series of initiatives. Local biodiversity action plans are not necessarily linked to climate change adaptation plans which in turn are not connected to transport infrastructure policies and to public health strategies. Meanwhile, there are many cities in which the imperatives of public order, water supply, health, education and housing are so great, and the financial resources so small, that little forward planning is possible. There are persistent differences between successful growing cities with adequate investment and those with few financial resources, whether in declining industrial areas or in regions where millions of poor people are migrating from rural areas to cities in search of better livelihoods.
Knowledge is not simply that held by the technocrats and in libraries, it is also the community understanding of local conditions and ways of coping with them. Neither top-down nor bottom-up schemes alone will deal with all situations. There has to be mutual respect, understanding, sharing and will to tackle the challenges on all fronts.
Ian Douglas is an emeritus professor in the School of Environment, Education and Development at the University of Manchester. He is president of the International Council on Ecopolis Development and author of Cities: An Environmental History.
Quest for a New Utopia
Smartphones in hand—over a billion worldwide by 2016, according to Forrester, a market research firm—we are reorganizing our lives and our communities around mass mobile communications. Talking on the go is hardly a new idea—the first mobile phone call was placed in the United States in 1946. But it wasn’t until the 1990s that personal mobility came to so dominate and define our lives and demand a telecommunications infrastructure that could keep up. By freeing us to gather where we wish, our mobiles are a catalyst for density; the most robust cellular networks are those that blanket stadiums in bandwidth so spectators can share every score by talking, texting and photos sent to the social web. But these same networks can be a substrate for sprawl, a metropolitan nervous system conveniently connecting our cars to the cloud. They may be our most critical infrastructure and seem to be our highest priority. Even as we struggle to find the public will to fund basic maintenance for crumbling roads and bridges, we gladly line up to hand over hard-earned cash to our wireless carriers. Flush with funds, the U.S. wireless industry pumps some $20 billion a year into network construction. While the capital stock invested in the century-old power grid is estimated at $1 trillion in North America alone, nearly $350 billion has been spent in the last twenty-five years on the 285,000 towers that blanket American cities with wireless bandwidth.
The transition away from wires is almost complete. Mobile phones are the most successful consumer electronic devices of all time. Some six billion are in service around the globe. Three-quarters are in the developing world. In just a few years, it will be unusual for a human being to live without one.
The final transformation of 2008 caught us by surprise. The urban inflection point and the ascendance of wireless were two trends demographers and market watchers had long seen approaching. But just as we verged on linking all of humanity to the global mobile web, we became a minority online. We’ll never know what tipped the balance—perhaps a new city bus fired up its GPS tracker for the first time, or some grad students at MIT plugged their coffee pot into Facebook. But at some point the Internet of People gave way to the Internet of Things.
Today, there are at least two additional things connected to the Internet for every human being’s personal device. But by 2020 we will be hopelessly outnumbered—some fifty billion networked objects will prowl the reaches of cyberspace, with a few billion humans merely mingling among them. If you think banal chatter dominates the Web today, get ready for the cacophony of billions of sensors tweeting from our pockets, the walls, and city sidewalks, reporting on minutiae of every kind: vehicle locations, room temperatures, seismic tremors and more. By 2016, the torrent of readings generated by this Internet of Things could exceed 6 petabytes a year on our mobile networks alone (one petabyte equaling one billion gigabytes). It will drown out the entire human web—the ten billion photos currently archived on Facebook total a mere 1.5 petabytes. Software in the service of businesses, governments and even citizens will tap this pool of observations to understand the world, react and predict. This “big data,” as it is increasingly known, will be an immanent force that pervades and sustains our urban world.
This crowded and connected world isn’t our future—we are already living in it. Comparing today’s China to his first glimpses of the Communist state in the 1980s, U.S. Ambassador Gary Locke captured the historic nature of this shift. “Now…it is skyscrapers, among the tallest in the world,” he told PBS talk-show host Charlie Rose on the air in early 2012. “It is phenomenal growth…using smartphones everywhere you go. The transformation is just astounding.”
But the transformation is just getting started. How we guide the integration of these historic forces, the intersection between urbanization and ubiquitous digital technology, will, to a great extent, determine the kind of world our children’s children will inhabit when they reach the other end of this century.
The symbiotic relationship between cities and information technology began in the ancient world. Nearly six thousand years ago, the first markets, temples and palaces arose amid the irrigated fields of the Middle East and served as physical hubs for social networks devoted to commerce, worship and government. As wealth and culture flourished, writing was invented to keep tabs on all of the transactions, rituals and rulings. It was the world’s first information technology.
In more recent eras, each time human settlements have grown larger, advances in information technology have kept pace to manage their ever-expanding complexity. During the nineteenth century, industrialization kicked this evolutionary process into high gear. New York, Chicago, London and other great industrial cities boomed on a steady diet of steam power and electricity. But this urban expansion wasn’t driven only by new machines that amplified our physical might, but also by inventions that multiplied our ability to process information and communicate quickly over great distances. As Henry Estabrook, the Republican orator (and attorney for Western Union) bombastically declared in a speech honoring Charles Minot, who pioneered the use of the telegraph in railroad operations in 1851, “The railroad and the telegraph are the Siamese twins of commerce, born at the same period of time, developed side by side, united by necessity.”
The telegraph revolutionized the management of big industrial enterprises. But it also transformed the administration of city government. Police departments were among the earliest adopters, using the tool to coordinate security over growing jurisdictions. Innovations flowed from government to industry as well—the electro-mechanical tabulators invented to tally the massive 1890 census were soon put to use by corporations to track the vital signs of continent-spanning enterprises. By enabling business to flourish and municipalities to govern more effectively, these technologies removed critical obstacles to the growth of cities. By 1910, historian Herbert Casson could declare matter-of-factly what was clear to all about yet another technology. “No invention has been more timely than the telephone,” he wrote. “It arrived at the exact period when it was needed for the organization of great cities and the unification of nations.”
For anyone who has telecommuted to work or watched a live broadcast from the other side of the planet, it seems counterintuitive that the growth of cities and the spread of information technology are so strongly linked. Many have argued the opposite—that new technologies undermine the need for cities and all of the productive yet expensive and sometimes unpleasant proximity they provide. In 1964 science-fiction legend Arthur C. Clarke articulated a vision of the future where, thanks to satellite communications, “It will be possible…perhaps only fifty years from now, for a man to conduct his business from Tahiti or Bali, just as well as he could from London.” More recently, as the Internet began its meteoric rise in the mid-1990s, tech pundit George Gilder wrote off cities as “leftover baggage from the industrial era.” But instead of disintegrating, London grew bigger, richer, more vital and connected than ever. Instead of undermining the city, new telecommunications technologies played a crucial role in London’s success—it is the hub of a global tangle of fiber-optic networks that plug its financiers and media tycoons directly into the lives of billions of people all over the world.
We experience the symbiosis of place and cyberspace every day. It’s almost impossible to imagine city life without our connected gadgets. In my own pocket, I carry an iPhone. It is my megacity survival kit, a digital Swiss Army knife that helps me search, navigate, communicate, and coordinate with everyone and everything around me. I have apps for finding restaurants, taxis and my friends. A networked calendar keeps me in sync with my colleagues and my family. If I’m running late, there are three different ways to send a message and buy some time. But I’m not alone. We’ve all become digital telepaths, hooked on the rush we get as these devices untether us from the tyranny of clocks, fixed schedules, and prearranged meeting points. The addiction started, as all do, slowly at first. But now it governs the metabolism of our urban lives. With our days and nights increasingly stretched across the vastness of megacities, we’ve turned to these smart little gadgets to keep it all synchronized. It’s no accident that the most common text message, sent billions of times a year all over the world, is “where r u?”
The digital revolution didn’t kill cities. In fact, cities everywhere are flourishing because new technologies make them even more valuable and effective as face-to-face gathering places.
Beginning in the 1930s, men like Robert Moses began rebuilding cities around a new technology, the automobile. Moses was an autocrat and technocrat, a master planner and “power broker” (the title of Robert Caro’s epic biography). His disdain for the accumulated architectural canvas he inherited was no secret. “You can draw any kind of picture you like on a clean slate and indulge your every whim in the wilderness of laying out a New Delhi, Canberra or Brasilia,” he said of the new capital cities of that era, “but when you operate in an overbuilt metropolis you have to hack your way with a meat ax.” For three decades, in various public posts in New York and elsewhere as a consultant, Moses brought to life the dazzling vision of a middle-class, motorized America first unveiled by General Motors at the 1939 World’s Fair in New York City. To make way for the future, he bulldozed the homes of over a quarter-million unfortunate New Yorkers.
Today, a new group of companies have taken GM’s spot in the driver’s seat and are beginning to steer us toward a new utopia, delivered not by road networks but by digital networks. Instead of paving expressways through vibrant neighborhoods, these companies hope to engineer a soft transformation of cities through computing and telecommunications. “Drivers now see traffic jams before they happen,” boasts an IBM advertisement posted in airports all over the world. “In Singapore, smarter traffic systems can predict congestion with 90 percent accuracy.” With upgrades like these, unlike Moses, we may never need to pave another mile of roadway.
For the giants of the technology industry, smart cities are fixes for the dumb designs of the last century to prepare them for the challenges of the next, a new industrial revolution to deal with the unintended consequences of the first one. Congestion, global warming, declining health—all can simply be computed away behind the scenes. Sensors, software, digital networks, and remote controls will automate the things we now operate manually. Where there is now waste, there will be efficiency. Where there is volatility and risk, there will be predictions and early warnings. Where there is crime and insecurity, there will be watchful eyes. Where you now stand in line, you will instead access government services online. The information technology revolution of the nineteenth century made it possible to govern industrial cities as their populations swelled into the millions. This revolution hopes to wrest control over cities of previously unthinkable size—ten, twenty, fifty, or even one hundred million people.
With a potential market of more than $100 billion through the end of this decade, many of the world’s largest companies are jockeying for position around smart cities. There are the engineering conglomerates that grew to greatness building the systems that control our world: IBM, which sprang from the company that built the tabulators for the 1890 census; Siemens, which got its start by wiring up German cities with telegraph cables; and General Electric, which lit up America’s cities with artificial light. But there are newcomers, too, like Cisco Systems, the master plumber of the Internet. For each, success in selling us on smart cities will pave the way for decades of growth. Peering out from the cover ofForbes in 2011, CEO Peter Löscher of Siemens summed up the hopes of corporate leaders everywhere as he gushed at the prospect of supplying infrastructure for the cities of the developing world, “This is a huge, huge opportunity.”
By the 1970s, the construction of urban expressways in the United States had ground to a halt, stopped by a grassroots rebellion that held very different views of the role of cars, how city planning should be conducted and even the very nature of the city itself. The first signs of a similar backlash to corporate visions of smart cities are now coming to light, as a radically different vision of how we might design and build them bubbles up from the street. Unlike the mainframes of IBM’s heyday, computing is no longer solely in the hands of big companies and governments. The raw material and the means of producing the smart city—smartphones, social software, open-source hardware, and cheap bandwidth—are widely democratized and inexpensive. Combining and recombining them in endless variations is cheap, easy, and fun.
All over the world, a motley assortment of activists, entrepreneurs and civic hackers are tinkering their ways toward a different kind of utopia. They eschew efficiency, instead seeking to amplify and accelerate the natural sociability of city life. Instead of stockpiling big data, they build mechanisms to share it with others. Instead of optimizing government operations behind the scenes, they create digital interfaces for people to see, touch, and feel the city in completely new ways. Instead of proprietary monopolies, they build collaborative networks. These bottom-up efforts thrive on their small scale, but hold the potential to spread virally on the Web. Everywhere that industry attempts to impose its vision of clean, computed, centrally managed order, they propose messy, decentralized and democratic alternatives.
It’s only a matter of time before they come to blows.
At the middle of this emerging battlefield sits City Hall. Encamped on one flank are industry sales teams, proffering lump sums up front in return for exclusive contracts to manage the infrastructure of cash-strapped local governments. On the other flank, civic hackers demand access to public data and infrastructure. But even as they face the worst fiscal situation in a generation—in the United States, in Europe, even in China—cities are rapidly emerging as the most innovative and agile layer of government. Citizens routinely transcend the tyranny of geography by going online, but local governments are still the most plugged in to their daily concerns. Yet citizen expectations of innovation in public services continue to grow, while budgets shrink. Something has to give.
For a new cadre of civic leaders, smart technology isn’t just a way to do more with less. It’s a historic opportunity to rethink and reinvent government on a more open, transparent, democratic, and responsive model. They are deploying social media to create more responsive channels of communication with citizens, publishing vast troves of government data on the Web and sharing real-time feeds on the location of everything from subways to snowplows. There’s also a huge economic opportunity. By unlocking public databases and building broadband infrastructure, many cities hope to spawn homegrown inventions that others will want to buy, and attract highly mobile entrepreneurs and creative talent. Looking smart, perhaps even more than actually being smart, is crucial to competing in today’s global economy.
Zoom out from the local to the global scale and, like a satellite photo of the earth at night, a twinkling planet of civic laboratories comes into view. According to Living Labs Global, a Barcelona-based think tank that tracks the international trade in smart-city innovations, there are over 557,000 local governments worldwide. As they begin to experiment with smart technology, each faces a unique set of challenges and opportunities with a different pool of resources. Much as there are mobile apps for every purpose we can imagine, smart cities are being crafted in every imaginable configuration. Local is the perfect scale for smart-technology innovation for the same reasons it’s been good for policy innovation—it’s much easier to engage citizens and identify problems, and the impact of new solutions can be seen immediately. Each of these civic laboratories is an opportunity to invent.
But each local invention is also an opportunity to share with other communities. For the last few decades, as the pace of globalization accelerated, multinational corporations were the primary means by which technological innovation spread from place to place. Industry would love to play the role of Johnny Appleseed again with smart-city technology. But cities have become highly adept at sharing and copying new innovations on their own, as evidenced in an accelerating diffusion of good ideas. Bus rapid transit, a scheme for improving the capacity of bus lines with dedicated lanes and other clever tweaks, has taken forty years to spread from its birthplace in Curitiba, Brazil, in 1974 to over 120 cities all over the world. Public bike sharing, which surged onto the global stage with the launch of Paris’ Vélib’ system in 2007, has reached a similar footprint in just a few years. Today, there is a bustling trade not just in case studies and best practices of smart-city innovations but actual working technology: code, computer models, data and hardware designs. These digital solutions can spread quite literally overnight.
The spectacular array of local innovations being cooked up in the world’s civic laboratories will challenge our assumptions about both technology and cities, and how they should shape each other. Technologists often want to cut to the chase, find the killer app and corner the market—this dynamic is already at work in corporate plans for cookie-cutter smart cities. But if we want to get the design of smart cities right, we need to take into account local quirks and involve citizens in their creation. Over time, we’ll surely extract the essence of what’s reusable and share it widely. But building smart cities is going to take time. It will by necessity be a long, messy, incremental process.
Every city contains the DNA of its own destruction—some existing fissure that, under pressure, can erupt into conflict or cascade into collapse.
Smart technologies are already fueling conflict between factions in divided cities. The extent of the role played by social media in the 2011 urban uprisings of the Arab Spring has been hotly debated. But Facebook, Twitter, and YouTube were a mere sideshow to the torrent of text messages that turned angry crowds into smart mobs, as they have done numerous times since 2001, when they summoned some 700,000 Filipinos to protests against corrupt President Joseph Estrada. These wireless channels, which provide what is for all intents and purposes a rudimentary form of telepathic communication, were so important that at the height of the Egyptian uprising authorities lobotomized Cairo by ordering a shutdown of the nation’s cellular networks. While this act didn’t stop the revolution (and probably hastened the flow of remaining bystanders out into the streets), blacking out cities’ wireless networks is becoming a disturbingly appealing option for security officials in the West as well—in August 2011 transit police jammed cellular signals during antipolice protests in San Francisco. The same week officials in the United Kingdom discussed blocking the BlackBerry Messenger mobile messaging service and other social media being used to coordinate widespread urban rioting.
Smart cities may also amplify a more commonplace kind of violence—that inflicted by poverty—by worsening gaps between haves and have-nots. This may happen by design, when sensors and surveillance are used to harden borders and wall off the poor from private gated communities. Or it may simply be an unintended consequence of poorly thought-through interventions.
In 2001, the government of India’s Karnataka state set out to reform the way it tracked land ownership, ostensibly to root out village-level corruption. Bhoomi, as the new digital recording system was called, was funded by the World Bank as a model for e-government reforms throughout the developing world. But it had the opposite impact. The village-level officials who had administered the old system had always taken bribes, but in return, they interpreted documents for the illiterate and provided advice on how to navigate complex legal procedures. Bhoomi certainly curbed village level corruption—the number of persons reporting paying bribes fell from 66 percent to 3 percent. But centralizing records merely centralized corruption. Wealthy speculators with deep pockets simply targeted officials at higher levels, allowing them to rapidly appropriate land in the expansion path of the region’s fast-growing capital, Bangalore. As one development scholar has noted, “While in theory, the initiative was intended to democratize access to information, in practice the result was to empower the empowered.” As similar digitization efforts transform government everywhere, the stakes for the poor are enormous. In this new computational arms race, poor communities will be at the mercy of those who can measure and control them from a distance.
Even if there is peace and equality, the smart city may come crashing down under its own weight because it is already buggy, brittle and bugged, and will only become more so. Smart cities are almost guaranteed to be chock full of bugs, from smart toilets and faucets that won’t operate to public screens sporting Microsoft’s ominous Blue Screen of Death. But even when their code is clean, the innards of smart cities will be so complex that so-called normal accidents will be inevitable. The only questions will be when smart cities fail, and how much damage they cause when they crash. Layered atop the fragile power grid, already prone to overload during crises and open to sabotage, the communications networks that patch the smart city together are as brittle an infrastructure as we’ve ever had.
Before it ever comes close to collapse, we might tear down the walls of the smart city ourselves, for they will be the ultimate setup for surveillance. Will smart cities become the digital analogue of the Panopticon, Jeremy Bentham’s 1791 prison design, where the presence of an unseen watcher kept order more effectively than the strongest bars? In the 1990s, the Surveillance Camera Players staged sidewalk performances at camera locations in New York City to protest the rapid spread of video monitoring in public spaces. As we install countless new devices that record, recognize, influence and control our movements and behaviors, this whimsical dissent will seem quaint in retrospection. For as the true value of these technologies for governments and corporations to spy on citizens and consumers alike becomes apparent, the seeds of distrust will bloom. In 2012, concerned about the risks of face-recognition technology, U.S. Senator Al Franken said, “You can change your password, and you can get a new credit card, but you can’t change your fingerprint, you can’t change your face—unless, I guess, you go through a great deal of trouble.” But devious countermeasures are already spreading. In the place of protest, more pragmatic responses are popping up, like Adam Harvey’s CV Dazzle. A face-painting scheme based on World War I antisubmarine camouflage, CV Dazzle is designed to confuse face-recognition algorithms.
A New Civics
If the history of city building in the last century tells us anything, it is that the unintended consequences of new technologies often dwarf their intended design. Motorization promised to save city dwellers from the piles of horse manure that clogged nineteenth-century streets and deliver us from a shroud of factory smoke back to nature. Instead, it scarred the countryside with sprawl and rendered us sedentary and obese. If we don’t think critically now about the technology we put in place for the next century of cities, we can only look forward to all the unpleasant surprises they hold in store for us.
But that’s only if we continue doing business as usual. We can stack the deck and improve the odds, but we need to completely rethink our approach to the opportunities and challenges of building smart cities. We need to question the confidence of tech-industry giants, and organize the local innovation that’s blossoming at the grassroots into a truly global movement. We need to push our civic leaders to think more about long-term survival and less about short-term gain, more about cooperation than competition. Most importantly, we need to take the wheel back from the engineers and let people and communities decide where we should steer.
People often ask me, “What is a smart city?” It’s a hard question to answer. ‘Smart’ is a problematic word that has come to mean a million things. Soon, it may take its place alongside the handful of international cognates—vaguely evocative terms like ‘sustainability’ and ‘globalization’—that no one bothers to translate because there’s no consensus about what they actually mean. When people talk about smart cities, they often cast a wide net that pulls in every new public-service innovation from bike sharing to pop-up parks. The broad view is important, since cities must be viewed holistically. Simply installing some new technology, no matter how elegant or powerful, cannot solve a city’s problems in isolation. But there really is something going on here—information technology is clearly going to be a big part of the solution. It deserves treatment on its own. I take a more focused view and define smart cities as places where information technology is combined with infrastructure, architecture, everyday objects and even our bodies to address social, economic and environmental problems.
I think the more important and interesting question is, “What do you want a smart city to be?” We need to focus on how we shape the technology we employ in future cities. There are many different visions of what the opportunity is. Ask an IBM engineer and he will tell you about the potential for efficiency and optimization. Ask an app developer and she will paint a vision of novel social interactions and experiences in public places. Ask a mayor and it’s all about participation and democracy. In truth, smart cities should strive for all of these things.
There are trade-offs between these competing goals for smart cities. The urgent challenge is weaving together solutions that integrate these aims and mitigate conflicts. Smart cities need to be efficient but also preserve opportunities for spontaneity, serendipity and sociability. If we program all of the randomness out, we’ll have turned them from rich, living organisms into dull mechanical automatons. They need to be secure, but not at the risk of becoming surveillance chambers. They need to be open and participatory, but provide enough support structure for those who lack the resources to self-organize. More than anything else, they need to be inclusive. In her most influential book, The Death and Life of Great American Cities, the acclaimed urbanist Jane Jacobs argued that, “Cities have the capability of providing something for everybody, only because, and only when, they are created by everybody.” Yet, over fifty years later, as we set out to create the smart cities of the twenty-first century, we seem to have again forgotten this hard-learned truth.
But there is hope that a new civic order will arise in smart cities and pull every last one of us into the effort to make them better places. Cities used to be full of strangers and chance encounters. Today we can mine the social graph in an instant by simply taking a photo. Algorithms churn in the cloud, telling the little things in our pocket where we should eat and whom we should date. It’s a jarring transformation. But even as old norms fade into the past, we’re learning new ways to thrive on mass connectedness. A sharing economy has mushroomed overnight, as people swap everything from spare bedrooms to cars, in a synergistic exploitation of new technology and more earth-friendly consumption. Online social networks are leaking back into the thriving urban habitats where they were born in countless promising ways.
These developments are our first baby steps in fashioning a new civics for smart cities.
Where You Live
For the last fifteen years, I’ve watched the struggle over how to build smart cities evolve from the trenches. I’ve studied and critiqued these efforts, designed parts of them myself and cheered others along. I’ve written forecasts for big companies as they sized up the market, worked with start-ups and civic hackers toiling away at the grassroots, and advised politicians and policy wonks trying to push reluctant governments into a new era. I understand and share much of their agendas.
But I’ve also seen my share of gaps, shortfalls and misguided assumptions in the visions and initiatives that have been carried forth under the banner of smart cities. And so I’m going to play the roles of myth buster, whistleblower and skeptic in one. New technologies inspire us to dream up new ways of living. The promise of technological fixes to complex social, economic and environmental problems is seductive. I get nervous when I hear people talk about how technology is going to change the world. I have been around technology enough to know its vast potential, but also its severe limitations. When coarsely applied to complex problems, technology often fails.
What’s much more interesting is how we are going to change our technology to create the kinds of places we want to live in. I believe that’s going to happen at the roots, and I hope my vision of the tremendous resilience and potential for innovation in every city will carry through the darker moments. I think there is an important role for industry, but my objective is to put an end to the domination of corporate visions in these early conversations about the future of cities.
Above all, I’m an advocate for cities and the people that live in them. Technology pundits can preach from behind a screen, but cities can’t be understood only by looking inside City Hall or a boardroom. You have to connect the schemes of the rich and powerful with the life of the street. That means taking a broad historical and global view of the landscape. To understand the choices we have ahead of us and the unintended consequences, and articulate a set of principles that can better guide our plans and designs moving forward, we need to reexamine how cities and information and communications technologies have shaped each other in the past. The smart city is a work in progress.
Still, the struggle will remain. The technology industry is asking us to rebuild the world around its vision of efficient, safe, convenient living. It is spending hundreds of millions of dollars to convince us to pay for it. But we’ve seen this movie before. As essayist Walter Lippmann wrote of the 1939 World’s Fair, “General Motors has spent a small fortune to convince the American public that if it wishes to enjoy the full benefit of private enterprise in motor manufacturing, it will have to rebuild its cities and its highways by public enterprise.” Today the computer guys are singing the same song.
I believe there is a better way to build smart cities than to simply call in the engineers. We need to lift up the civic leaders who would show us a different way. We need to empower ourselves to build future cities organically, from the bottom up, and do it in time to save ourselves from climate change. It can be done, one street corner at a time. If that seems an insurmountable goal, don’t forget that at the end of the day the smartest city in the world is the one you live in. If that’s not worth fighting for, I don’t know what is.
Excerpted from Smart Cities: Big Data, Civic Hackers, and the Quest for a New Utopia, by Anthony M. Townsend. Copyright © 2013 by Anthony M. Townsend. With permission of the publisher, W.W. Norton & Company, Inc.
Anthony M. Townsend is research director of the Technology Horizons Program at the Institute for the Future. He is also a senior research fellow at New York University’s Rudin Center for Transportation Policy and Management. He is the author of Smart Cities: Big Data, Civic Hackers, and the Quest for a New Utopia.
Detroit has become a synonym for urban rot. The litany of its ills runs on and on—racial tension, rampant crime, broken schools. In July came another sign of decline when the City of Detroit filed for bankruptcy under Chapter 9 of the U.S. federal code, becoming the largest city to ever do so. Kevyn Orr, the city’s emergency manager, a fiscal overlord appointed by Michigan’s governor, estimated that Detroit’s long-term debt and unfunded pension and health care liabilities total $18 billion to $20 billion. For a municipality of 700,000 people, that is a staggering figure. Then in October, when it seemed that the city’s reputation couldn’t sink any lower, a former mayor, Kwame Kilpatrick, was sentenced to twenty-eight years in federal prison on corruption charges.
Such is its fall from grace that other struggling metropolises are in the habit of citing the city to put their own difficulties in a more favorable light. “At least we’re not Detroit,” utter urban managers from coast to coast. Conservative politicians scapegoat the city in their rhetoric, warning that progressive policies will lead to the ‘Detroiting’ of other American communities.
The Detroit experience is worth close examination for what it says about the plight of once-great industrial centers. But it is also necessary to dispel some of the myths surrounding Detroit’s fall. As satirist Jon Stewart observed on his popular Daily Show television program, many of the journalists fascinated by Detroit’s supposed demise file their reports from Chicago, some three hundred miles and two states to the west. Detroit, in fact, is not dead. A new city, constructed on an innovative twenty-first century model, is slowly emerging.
Situated at the heart of the Great Lakes, Detroit was founded by the French explorer Antoine de Lamothe, sieur de Cadillac, in 1701. The colonial fur-trading outpost became a farming community and, later, a center for manufacturing enterprises. With its mechanical and engineering talent, access to raw materials, and access to land and sea transportation networks, Detroit became the mighty capital of the world automotive industry in the twentieth century. One of the age’s greatest industrialists, Henry Ford, founder of the Ford Motor Company, grew up on a nearby farm. If the city was a byword for anything back then, it was for progress, or modernity. Detroit was affectionately known as Motor Town, or just Motown after becoming the unofficial capital of soul music in the 1960s.
Detroit is emblematic of industrial cities in the twentieth century. Whether it is Turin, home to Italy’s Fiat automotive enterprise, or the steel city of Pittsburgh closer to home, such cities attracted enormous capital investment as they built up huge industrial infrastructures. Immigration soared as companies hired large workforces. These vertically integrated operations served as paternalistic overseers of their host cities, creating schools, hospitals, recreation facilities and other civic goods, as well as paying high wages to blue-collar workers. The good times lasted for decades, until foreign competition and other challenges forced the companies to downsize, relocate or close for business.
Detroit grew as fast and as large as any of the world’s industrial hubs. From about 300,000 residents in 1900 the city grew to one million by 1920 and nearly two million by 1950 before urban flight. The city’s land area swelled from about thirty square miles at the start of the automotive age to 139 square miles by 1926.
Shortly after the war ended, the exodus from the crowded city to the spacious new suburban communities began. Typically cities spread into the farmland at their perimeters. Automakers and road builders eager to sell cars, home builders eager to sell new houses, village mayors eager for new taxes all promoted suburban growth. So did the federal government, with subsidies and tax incentives. Looking for elbow room, families in crowded cities like Detroit began moving to the new communities. Discriminatory practices such as redlining—denying minority buyers mortgages and access to homes in white neighborhoods—made the experience of suburbanization in Detroit and many other cities an ugly one. Unscrupulous real estate agents encouraged white flight by stoking fears of African-Americans moving in next door. Rancor ran deep. Experts warned of two Americas: one suburban, privileged and white; the other urban, poor and black.
Just as corporate genius made Detroit a great American success story, corporate failure helped send the city on its downward spiral. America’s auto industry contracted and then all but collapsed as it struggled with competition from Europe and Japan. Once renowned for sleek engineering, Detroit, along with other failing industrial centers in the northeast United States, became part of the Rust Belt.
Beset by falling tax revenues, Detroit’s municipal government initially responded by raising taxes on residents to the highest levels in the State of Michigan, and eventually by borrowing huge sums in the municipal bond market to carry on city operations. The city ran annual operating deficits beginning a decade ago, borrowing to sustain the operation with little if any hope of paying off the debts. Even with layoffs of half the city’s municipal workforce, services to residents deteriorated. Today, nearly half of the city’s streetlights don’t work on any given night, leaving entire neighborhoods in darkness. Police are notoriously slow to respond to calls for help in the ensuing lawlessness.
An Urban New Deal
The vacuum in city leadership has been filled, at least in part, by civic-minded corporate executives, leaders of charitable foundations and nonprofit neighborhood groups, university programs and others. There is a sharp distinction to be made between the indebtedness and broken bureaucracy of the mismanaged city government and, on the other hand, the broader Detroit community and economy.
Certainly the automotive industry has recovered dramatically from its own brush with bankruptcy a few years ago, thanks to the Obama administration’s rescue package and the nation’s seemingly insatiable appetite for new cars and trucks. Detroit’s downtown and Midtown districts, home to the city’s banking, legal, university, hospital and museum operations, are thriving and fast filling up with new workers and residents. Long-planned civic improvements like the replacement of a blighted, formerly industrialized riverfront with a five-mile-long recreational promenade called the RiverWalk are proceeding apace. The local music and entertainment scene remains vibrant. Detroit’s brand, that elusive identity that is always part fact and part fiction, seems to be improving, benefiting from the American love of a comeback story. Moviegoers were treated to a poignant twist on the theme in Searching for Sugarman, chronicling the career resurrection of Detroit balladeer Sixto Rodriguez; the film received the Academy Award for best documentary feature in 2013.
Make no mistake, Detroit is a deeply troubled city. Poverty and unemployment run high, among the worst in urban America, and the scourges of crime and poorly performing schools still scar far too many neighborhoods. Blight remains endemic; estimates vary but the city probably contains at least fifty thousand to seventy-five thousand abandoned buildings and perhaps a hundred thousand vacant residential lots. Municipal services are miserable. The bankruptcy case looks to drag on for at least a year before the city emerges as a leaner, more fiscally sound enterprise.
The combination of enormous need and the vacuum in municipal leadership has brought forth efforts to ‘reimagine’ Detroit. That is, instead of pursuing traditional economic development activities like building new sports stadiums or downtown showcase projects, many Detroiters are now independently acting to reinvent their city with neighborhood revitalization projects, hyper-local economies and new localized governing structures. These nascent efforts, which can be seen in other post-industrial cities as well, promise something entirely new in urban America.
With Detroit’s civic government unable to deliver adequate services, the city in recent years has spun off pieces of municipal governance to a series of quasi-public conservancies, public authorities and similar nonprofit bodies that are professionally managed. Most or all are thriving under their new management. Multiple parts of city government have been offloaded in recent years, including Detroit’s Cobo Center convention facility in 2009; its Eastern Market public market and the Detroit Historical Museum, both in 2006, and the construction and operation of the RiverWalk and the city’s central Campus Martius Park over the past ten years.
The nonprofit bodies running Cobo, the art museum, the RiverWalk and other assets work well under a new structure due to various factors. Among them: more efficient operations once freed from the city’s bureaucracy. The Detroit Historical Museum has fewer than half the employees it had in 2006 when it left direct city control. Cobo Center slashed operating expenses by 28 percent to $14.5 million last year. Cobo’s utility costs dropped nearly 42 percent from about $4.8 million in 2010 to about $2.8 million in 2012. Cobo maintains the same workforce even though the authority picked up several new functions that were previously based elsewhere in city government, including finance and accounting, payroll, human resources, marketing and sales. Sheila Cockrel, a former city council member, told me: “These new authorities are able to create more flexibility in job descriptions and setting standards for acceptable performance, and I think that has had an impact.”
New funding sources open up once operations are out of the city’s direct control. The Cobo regional authority now benefits from new hotel and liquor taxes. Projects like the RiverWalk and Eastern Market have benefited from foundation grants and other donations from entities such as the Kresge Foundation and General Motors.
Finally, there is more focused management. Oversight of Eastern Market once bounced from city department to city department. But once the nonprofit Eastern Market Corporation took control in 2006, a new professional management team was brought in. Similarly, the new Cobo regional authority and the RiverWalk are being run by professional management. “The spinoffs are able to procure faster with less bureaucracy, get better prices,” Cockrel said. “These institutions aren’t bogged down with the financial chaos that has impeded efficient operation in Detroit for so long. People get paid on time.” Cockrel said the new management structures offer greater flexibility. “It’s sort of like hardening of the arteries, plaque building up,” she said of the former direct city control. “The inability to move in a nimble manner feeds on itself and makes things less and less able to function properly. Then it costs more. It’s a vicious circle.”
The authorities and conservancies that manage the assets are led by appointees rather than by democratically elected and thereby accountable public officials. Dale Thomson, a professor of political science at the University of Michigan-Dearborn who has studied the new management structures, said the city needs to balance the potential for service improvement with the potential for diminished accountability or democratic control. But in the end, just spinning off a piece of city government seems to unleash new energy. “Creating a new organization, changing the rules, even if you’re dealing with the same people, there’s a sense of liberation,” Thomson told me. “There are a lot of great people working in city government who feel overwhelmed, and if they were put into a new setting like this, they might thrive.”
Community of Gardeners
Detroit during its twentieth century peak was a city of neighborhoods. Unlike, say, New York or Chicago, with their housing stock consisting largely of brick or stone apartment buildings, Detroit’s housing stock consisted mainly of single-family houses—bungalows and one-story ranch-style houses for the factory workers, or, in the more upscale districts housing professionals, two-story Tudor-style homes with brick facades, hardwood floors, high ceilings and other amenities. As the population dwindled, these wood-frame houses did not hold up well to abandonment. Water damage, vandalism, arson and other ills could quickly reduce a once-useful house to a ruin in a matter of months. As the city demolished abandoned houses as part of blight removal programs, neighborhoods thinned out. Today, the amount of vacant land inside Detroit’s 139-square-mile footprint has been variously estimated at twenty to forty square miles, or from roughly 15 percent to 30 percent of the city’s land mass. This vacant land is often overgrown with scrub vegetation and quickly becomes the site of illegal dumping of trash.
Detroit has recently begun to attack this blight with ramped-up demolition programs funded by the state or federal governments. Tens of millions of dollars of outside aid have been earmarked for demolition of abandoned buildings and for cleaning up trash-strewn vacant lots, and new blight oversight structures have been created. These efforts promise to speed up the process of removing the eyesores. But ordinary citizens have long since taken in hand the challenge of repurposing vacant urban land.
The most common locally determined new use is community gardening, in which volunteers clear one or more vacant lots in a neighborhood and plant fruits and vegetables as a community project. The city now sports more than one thousand of these small, volunteer-based, nonprofit community food plots, with the produce either given away to food banks for the poor or consumed by the growers and their neighbors.
Detroit is now in the midst of a debate over when large-scale, for-profit farming operations ought also to be welcomed in the city. One such proposal, known as Hantz Farms, first proposed about four years ago commercial farming of perhaps two thousand acres of vacant land scattered throughout the city’s east side; when finally approved by a closely divided City Council, the farming proposal had shrunk to about 150 acres on which Hantz Farms will be permitted to plant hardwood trees for eventual harvesting. Opposition to such large-scale projects stems largely from local mistrust of the corporate for-profit motive and what it may mean to the nonprofit community growers. Many of the most active community gardeners believe that growing food and controlling land rectifies historical social injustices, particularly for Detroit’s largely African-American population. The for-profit growers insist that there is more than enough vacant land in Detroit to go around. This debate continues.
Meanwhile, in early 2013 a team of urban planners and community organizers, funded by foundations and working in semi-isolation from city government, produced Detroit Future City, a visionary template for Detroit’s future recovery. The plan envisions widespread repurposing of vacant urban land including growing food, reforestation, recreational corridors, mixed-use ‘green’ neighborhoods that are semi-rural in nature and ‘blue’ infrastructure—creation of rainwater retention ponds and other watery infrastructure to capture rain and keep it from running off into the city’s sewer systems and thus saving millions of dollars in taxpayer money. All these proposed new uses are in the very earliest stages of implementation, and indeed Detroit Future City suggests that implementation will take place over years and decades. But if still mostly a vision, these proposals to turn Detroit’s vacant-land liability into an asset for the city’s recovery have taken root in the city’s imagination. An implementation team of about ten professionals has been hired to push the Detroit Future City recommendations forward, mainly by looking for pilot programs to illustrate the concepts in actual practice. And both candidates in the 2013 mayoral election have cited Detroit Future City as part of their inspiration for their neighborhood recovery schemes.
The bankruptcy filings by General Motors and Chrysler in 2009 marked an emphatic and symbolic end to Detroit’s automotive century. Even though the companies and the domestic auto industry have recovered, the industry will never again employ the hundreds of thousands of factory workers it did at the midpoint of the twentieth century. And much automotive production has long since moved out of Detroit anyway, finding more corporate-friendly climes in the American South, Mexico, China, and other areas. This has produced staggeringly high unemployment rates in the city of Detroit, with peak joblessness hitting about 25 percent during the 2008 recession and unofficial estimates running much higher.
Motown to TechTown
Business leaders have begun to promote a smaller scale, more entrepreneurial approach to energizing the city’s economy. A number of formal and informal business incubators have sprung up in recent years, offering training, networking, seed financing and other help to entrepreneurs hoping to start their own businesses. Most notable of these efforts are TechTown, affiliated with Wayne State University, and the M@dison, a hub of digital entrepreneurs bankrolled by Dan Gilbert, the billionaire founder and chairman of Quicken Loans, an online mortgage company. Gilbert moved his Quicken Loans to Detroit’s central business district in 2010 and since then has become the city’s biggest promoter, helping to underwrite creation of a new light-rail transit line to start construction in late 2013 and promoting the growth of retail and entertainment options in the downtown area. His M@dison hub includes several small but promising start-ups as well as the local offices of Twitter. A number of slogans are heard now that try to capture this new entrepreneurial energy—“Outsource to Detroit,” “Opportunity Detroit,” “Detroit 2.0” and, in a nod to the city’s main street Woodward Avenue, “Webward Avenue.”
As with the repurposing of vacant urban land, these entrepreneurial efforts remain in the early stages, but without doubt they have created a sense of enthusiasm in and around the city’s central business district. The downtown and Midtown districts are filling up with smart, educated young people, and apartment rental rates are rising. New housing is under construction, including several projects that are repurposing long-vacant 1920-era office towers for residential use. Whatever troubles beset the city’s poorer neighborhoods, the central heart of the city is recovering nicely. This has raised the level of public debate on issues of equity, social justice and who should benefit as Detroit recovers. But certainly after so many years with little but bad news for Detroit, the recent surge in entrepreneurial vigor has given many cause to cheer.
Detroit, then, is doing its best to reimagine itself in new and creative ways. These efforts are drawing worldwide attention; no longer do the journalists, artists, academics, and documentarians flock to Detroit simply to record the city’s devastation, a phenomenon locals dismiss as ‘ruin porn.’ Now many come to study the recovery strategies, and the number of accounts of Detroit’s comeback are growing.
The comeback stories may be premature, as Detroit remains a deeply troubled and wounded city. But no longer do people believe that Detroit represents just the ‘end’ of something, as though history stopped when the factories closed. Something new is happening in Detroit, and the city of 2050 will be as unimaginably different from 1950 as the city of 1950 was from 1850. The city’s municipal bankruptcy obscures signs of recovery, but a journey to the future is underway.
John Gallagher has been a reporter for the Detroit Free Press since 1987. He is the author ofReimagining Detroit: Opportunities for Redefining an American City and Great Architecture of Michigan. His latest book is Revolution Detroit: Strategies for Urban Reinvention. On Twitter:@JGallagherFreep.
China’s urban expansion is breathtaking. In 1980, fewer than 200 million Chinese people lived in towns and cities. Over the next thirty years, China’s cities expanded by nearly 500 million—the equivalent of adding the combined current populations of the United States, the United Kingdom, France and Italy. Today more than 700 million people are crammed into urban areas, a little over half the population. By 2030, China’s cities will be home to one in every eight people on earth.
Nowhere is China’s urban transformation more striking than in Chongqing, the largest city on the upper reaches of the Yangtze River, with a population of around seven million. Once a rusting laggard, marooned far from the dynamic cities of the eastern seaboard, this rough-and-ready river port is undergoing spectacular change. Over the past decade, hundreds of towering apartment blocks have sprouted from the city’s deep red soil and new bridges have soared across its muddy riverbanks. Chongqing’s skyline, now a thicket of skyscrapers, resembles Hong Kong’s. And the construction frenzy shows no sign of slowing down. On the city’s northern outskirts, bulldozers flatten wooded hills and lush ravines to satisfy property developers’ insatiable appetite for land. Near the airport, teams of construction workers lay track on a new monorail that will eventually run to nine lines. And at the heart of the old city, wreckers armed with pickaxes hack at a tangle of grimy slums.
Yet Chongqing’s experience also shows the dark side of the urbanization process. Amid the city’s development, it is easy to miss the poverty on the ground. Urbanization has brought enormous wealth, but the millions of rural migrants who work on building sites, serve in restaurants and rub flesh in massage parlors remain poor. Many new arrivals from the rural counties that surround the metropolis struggle to scratch a living. On Chongqing’s streets, scrawny men flog pirated porn DVDs from pavements sticky with cooking slop, rows of women sweat at sewing machines in dank basements and crowds of unemployed migrants gather at an outdoor labor market. On the mossy stone steps that lead down to the Yangtze River, shirtless old men toil as porters, balancing their cargo of goods on long bamboo poles. Chongqing’s stick men are just as much a part of the modern city as businessmen sipping cocktails in glitzy bars.
Chongqing’s leaders want many more rural people to migrate to the city and other towns within the larger municipality, which is home to 28 million people. They believe that faster urbanization will unlock economic growth and boost rural incomes. Their ambitious goal is to double the municipality’s registered urban population from ten million in 2010 to twenty million by 2020. This kind of direct promotion of urbanization is new: for the past fifty years or more, China deliberately held back the pace of migration, partly for fear that cities would not be able to cope with a vast influx of migrants. Chongqing’s plan jibes with a shift in national policy: China’s 12th Five-Year Plan, for the period from 2011 to 2015, explicitly calls for more urbanization and supports the emergence of megacities. Li Keqiang, China’s new premier, has consistently expressed his support for speedier urbanization nationwide. He believes that encouraging millions of farmers to migrate to the city, and building consumer-oriented cities to house them, will underpin future development.
The journey from farm to city is the story of China’s transformation from a poor underdeveloped country to an economic superpower. The driving force behind the biggest migration in history is economic: workers who migrate to the city earn far more than those who stay on the farm. The twin processes of urbanization and industrialization also bring huge productivity gains for the national economy—moving hundreds of millions of people out of economically insignificant jobs on the land, and into factories and onto building sites in the city, produces enormous economic growth. Mass migration to the cities makes sense both for individual farmers and for the country as a whole. For this reason, nothing is likely to halt the huge migration from farm to city—barring economic collapse, political turmoil or some other cataclysmic event. Historical experience, economic logic and government policy all point to the same conclusion: by 2030, or not long after, one billion Chinese will live in cities.
What kind of lives will China’s urban billion lead? The shape of China’s cities in 2030 will depend on whether leaders are willing to forgo short-term economic gains and make the changes needed to create a healthier form of urbanization. China’s urbanization numbers are impressive, but they hide an unpalatable truth: a large chunk of Chinese urbanization is essentially bogus. Around 250 million people in Chinese cities do not live genuinely urban lives, because rural migrants are not entitled to urban social security and face institutionalized discrimination in the cities. China’s household registration system (known as hukou) legally ties migrant workers to their rural home, preventing them from putting down proper roots in the city. Rural migrants in the city lead segregated lives, hidden away in worker dormitories or slum villages. The rapid modernization of urban China over the past couple of decades is astonishing, but social stratification is worsening.
The Hukou Trap
When farmers leave Chongqing’s rural counties to seek work in the city, many end up in the teeming slums of Eighteen Steps. The dripping alleyways are lined with dank, squalid houses patched with filthy tarpaulin. “We live in the city, but we do not feel urban,” says Zhong, a migrant from rural Sichuan, who shares a windowless concrete cell with five other migrant workers. “We have no proper home, and no social security.” Inside, a man with crippled legs lies on a bed fashioned out of bamboo poles and heavy cotton blankets. Cheap suitcases and nylon-thread bags are stacked on a ledge above his head. Outside, a crude, hand-written sign hangs from a stick, advertising beds for three renminbi per night, about forty cents. Lodgers walk through a brick entrance past a pile of empty bottles, cardboard boxes and other scrap, which the proprietor collects and sells for change. Rats are common companions.
The migrant workers in Eighteen Steps live at the bottom of the urban heap. Officially classed as temporary residents, they lead temporary lives. Chongqing is engaged in perhaps the most radical experiment in hukou reform nationwide, but these men have yet to qualify, even though they have lived in the city for several years. Under the initial reforms, only long-term migrant workers with stable jobs and accommodation can convert to a local urban hukou. So they live in the city, but with little access to public services or social welfare. “I won’t go home because I’m not used to the life there anymore,” says Yang, a young migrant worker with hedgehog hair who was born in neighboring Fengdu County. “I don’t belong in the countryside and I don’t belong in the city.”
Today, one in three people living in China’s cities are treated as second-class citizens. If China does not begin to untie migrant workers’ social-security entitlements from their hukou status, the proportion of disenfranchised urban residents could grow to one in two. By 2030, nearly 500 million people could effectively belong to a giant urban underclass, without proper housing or access to basic public services. The potentially explosive political ramifications of this bleak picture mean that some reform is unavoidable, as local governments have already found. The big question is whether the central government has the political will to address the roots of the problem. This is a central question for China’s new leaders. Premier Li says a “New Urbanization Plan,” due by the end of 2013, will be a blueprint for creating a healthier form of urbanization.
The first task is to reform the hukou system, giving migrants access to schools, health care, housing and social security in the cities in which they work. Delinking access to basic services from hukoustatus has already begun in several localities nationwide. Since 2009, several cities have introduced alternative residence permit systems that entitle migrant workers to access local social services. Some permit systems—which operate independently of the national hukou system—offer easy access to an extremely limited number of services. Some, such as Shanghai’s, set a high eligibility threshold but offer a comprehensive social insurance package. Other systems offer a mix of both, giving limited entitlements to temporary permit holders and full entitlements to permanent residents. In time, these local residence permit schemes could be extended nationwide. So far, local hukou reforms have been slow and piecemeal, but more migrant children are receiving a state education, and more of their parents are enrolled in social insurance programs.
The second task is to make progress on the most divisive issue of all: land reform. Currently, land in China is divided into two types: urban and rural. Urban land is owned by the state but leased for seventy-year periods to developers, companies and homeowners. Rural land belongs to village collectives that lease parcels of land to farmers for extendable thirty-year periods. Rural land is further divided into two broad types: farmland and rural construction land, occupied by homes, public buildings and roads. Rural collectives have the right to sell the land they own, but cannot sell it directly for urban development. Only local governments have the legal power to turn collectively owned land into state-owned urban land, which can then be used for construction. Because urban construction land is worth far more than rural land, local governments are able to pocket the difference between the low price they pay for rural land and the much higher price they can sell it for as urban construction land. This lucrative game is a huge money-spinner for local governments, which rely on land sales for a substantial chunk of their income.
Collective ownership of land is supposed to protect farmers from rapacious landlords and developers. All too often, however, it merely makes them the victims of corrupt village chiefs and local officials who sell communal land to developers for enormous personal profit. Individual property rights would help protect farmers from greedy officials and allow them to gain more value from their land. Yet for many of China’s Communist leaders, land reform is ideologically unpalatable. Along with state ownership of the country’s biggest enterprises, collective ownership of land is one of the only old Communist policies that remains sacrosanct. Well-meaning conservatives also worry that liberalizing the land tenure system risks returning farmers to the dark old days of feudal China when, according to party propaganda, peasants were rent slaves bound to landlords. Giving uneducated farmers the right to transfer their land, they fear, will allow a new class of unscrupulous land barons to monopolize the country’s farms. Far from creating a mass of consumers, too much reform risks breeding a lumpenproletariat of landless peasants crammed into urban slums.
Despite this opposition, a bunch of land reforms are gathering momentum, even if overall progress remains sluggish. Some of the reforms are sanctioned by the central government; others are promoted at the local level. Chongqing and neighboring Chengdu have experimented with using property exchanges to open up agricultural land transfers to market forces. More innovatively, both cities have extended the system to allow farmers to sell their use rights to rural construction land to urban developers. The exchanges enable farmers to find buyers and fix prices for their land, allowing them to leave for the city with money in their pocket. The southern boomtown of Shenzhen is also experimenting with allowing village collectives to sell their rural construction land directly to urban land developers rather than indirectly via government officials. This means they can capture the market value of their land.
These are useful advances. More land transfers should help to redistribute land efficiently, raise rural incomes, produce a more sustainable pattern of urbanization and, ultimately, help to stimulate domestic demand. Allowing farmers to sell their residential land rights to urban buyers is a small but important step toward unifying the rural and urban land markets. Yet farmers still cannot sell their land on an individual basis. It is indefensible that urban citizens should enjoy full individual property rights while farmers remain chained to village collectives, especially when collective ownership has patently failed to protect farmers from scheming officials and village cadres. Any discussion of private ownership remains political dynamite, but the only logical trajectory of reform is to give individual farmers more rights over their land.
Skyscrapers and Slums
The third task for China’s new leaders is to build more social housing for people who cannot buy their own. If they truly want to shift toward a more a socially sustainable model of urbanization, they must give migrant workers in the city somewhere decent to live. As municipal governments demolish the thousands of slum villages that riddle China’s cities, they need to replace them with rental housing that migrant workers can afford. So far, China’s urbanization process has not generated the kind of massive, cankerous slums that blight other developing cities around the world. But as more rural migrants bring their families to the city, and as these people begin to settle permanently, China’s cities will struggle to avoid this horror. As Chinese cities become more prosperous, these people should move out of slums and into social housing.
Yet social housing is not a silver bullet. Cities with aggressive urbanization policies, such as Chongqing, need to beware herding millions of farmers into cities who have few, if any, useful urban skills. Long-term migrants know how to survive in the city, but many farmers will struggle. The fear is that they will end up living, unemployed and on benefits, in vast housing estates. This gloomy path is well trodden in the Western world: the United States has its drug-infested projects, Britain its sink council estates and France its rundown banlieues. But China’s policy makers have given little thought to the social canker that can fester among disadvantaged communities in public housing, especially where there is social discrimination and a shortage of jobs. In China the emphasis is on replacing decrepit housing with modern apartment blocks. But without very good management, towers of shoddily built flats peopled by hopeless ex-farmers could deteriorate very quickly.
A more immediate concern is how cash-strapped cities will pay for all this new housing, not to mention the cost of integrating millions of migrants into city life. If ambitious local hukou reforms such as those in Chongqing are extended nationwide, the financial pressure will be intense. At the moment, local governments rely on land sales to plug their funding shortages. But this cannot be a long-term solution to the problem: China only has limited farmland and there is no guarantee that land prices will rise quickly enough to replenish local coffers.
If local governments cannot rely on flogging land to shore up rickety local finances, how will they pay for social housing, public services and city infrastructure? The answer is that the central government must shoulder its fair share of the spending burden. Local governments currently finance nearly all public services, including 80 percent of basic health and education expenditure. Since a large slice of locally collected taxes goes into central government coffers, most local authorities struggle to meet their financial responsibilities. By contrast, the central government is swimming in cash. Increasingly, the challenge facing China is not a lack of funds as such, but how to channel them to the right places and to the right people. That means reforming the country’s dysfunctional fiscal system so that the central government covers more social welfare, education and health services spending. This may prove the toughest task of them all.
These are all big, difficult and painful reforms. Dismantling the current hukou system, abandoning collectivist land ownership and redesigning the country’s fiscal system will require enormous political courage. Building enough homes for hundreds of millions of new urbanites and integrating them into the urban welfare system will be extremely expensive. The previous administration, headed by President Hu Jintao and Premier Wen Jiabao, did not have the stomach to press ahead with such reforms. President Xi Jinping and Premier Li Keqiang, who are set to hold power over the coming decade, need to show more gumption. Otherwise China risks repeating the experience of Latin America, becoming a country with pockets of extreme wealth and an educated middle class, but whose cities teem with enormous slums and suppurate with entrenched social divisions.
Since 1978, China’s leaders have made all the necessary changes to ensure that the country’s economic growth machine keeps humming along. It is now time to make further changes. The fact that China’s cities have grown by 500 million people during that time without sparking greater social unrest is a remarkable achievement. But the present model cannot continue. If China’s cities are destined to accommodate one in every eight people on the planet, its leaders must find a healthier, more inclusive and, ultimately, sustainable model of urban development.
This article is adapted from China’s Urban Billion: The Story Behind the Biggest Migration in Human History, by Tom Miller, published in December 2012 by Zed Books.
Tom Miller is managing editor of the China Economic Quarterly, a publication of the research company GK Dragonomics. He is the author of China’s Urban Billion: The Story Behind the Biggest Migration in Human History.
Fortress New York
The September 11 attacks live on in the everyday security artifacts and practices that remain in their wake. Even as there is a decline in U.S. boots on foreign grounds, there are guards at entries to museum lobbies, subway stations and airport departure gates in the homeland. There is also a heavy security component in how buildings are being constructed. Rather than blindly accept the inspections, intrusions and blockages, Americans, and people in other countries similarly affected, should call them into question.
The security measures exact huge costs; financial and otherwise. Organizations and individuals are put through complex and tedious maneuvers. Agencies change how they run and people have to alter their lives. And there is good reason to doubt any net positive results. So it is not a matter of a ‘trade-off’ between security and other life goals. It’s just a net loss.
“See Something, Say Something”
Let’s look down in the New York subways, a place that my co-researcher Noah McClain and I examined closely over a two-year period with funding from the National Science Foundation. We were able to apply some common (and not so common) social science techniques to learn how the various security protocols were doing in the real world of turnstiles, train cars and waiting areas. We spent a lot of time interviewing more than one hundred workers in the system, including train conductors and drivers, cleanup crews, and station agents (the people who sit in the booths dispensing information and keeping an eye out for trouble). We also spent many hours just watching on the platforms, examining workers’ routines and their interactions with passengers, looking in particular for the ways they deal with danger. In some instances, we took up employees’ invitations to observe them on the job to see just how they worked equipment and dealt with challenges as they arose in real time. Finally, to gain some vantage ‘from the top,’ we met repeatedly with officials and security officers of the Metropolitan Transportation Authority (MTA), the agency that runs the trains and buses of New York.
The New York subway system has hundreds of stations and thousands of entrances, platforms, corridors and tunnels—too many and too complicated to fully patrol. But this very obvious vulnerability does not cancel out the felt need, and indeed official dictum, that something must be done. This need to do something is a common reaction when facing radical ambiguity, regardless of the complexity of the tasks or the improbability of effectively taking them on. And here’s the critical background fact in the case of the subways: although police have come up with some plots against New York City targets through intelligence and informants—a 2009 Al-Qaeda plot allegedly against the subway system was foiled by a tip received by the FBI—the anti-terror apparatus in the subways has not resulted in a single person being so charged. It is highly unlikely that the multiple programs and procedures aimed at forestalling attacks are the reason why. One piece of evidence for this is that those whose job it is to enact the programs and procedures, the subway workers we dealt with, do not take them seriously. As we learned, they have better things to do.
Perhaps the most famous MTA security initiative since 9/11 is the “See Something” campaign—much imitated and used in facilities of all kinds around the world. Signs say it everywhere and in numbers of different languages: If You See Something, Say Something. The intercoms on platforms and in trains announce it with automated constancy. A problem with the announcements is that they are often so garbled nobody can figure out what is being said. They add to the din of screeching train cars, loud talking and (sometimes) musicians working the system. Not only are the garbles an annoyance, but they could well interfere with announcements pertaining to real danger, including some that might be made by subway workers straining to use their own voices to maintain order.
The “See Something” posters are also visual pollution, interfering among other things with the clarity of signs that actually tell people how to get out and the names of the various exits. The warning words are even on step-risers in staircases. Some “See Something” posters are taped on the glass enclosures of station agents’ booths, interfering with workers’ ability to see what is happening in the entrances and on platforms. Signage experts will tell you that time spent glancing at one sign means less time spent taking in another. Every sign added thus subtracts from the ones, including mighty important ones, already present.
When the signs do ‘succeed’ in generating response, those who say something often create irrelevant contacts with workers and security personnel. This can deter workers from dealing with actual urgent needs. What are those urgent needs? People have heart attacks and strokes in the subways. Children wander off from their guardians. Depressed people attempt suicide (seventy-eight of them, over the last three years, with success). Others fall onto the tracks and meet death that way (a total of 140 people were hit by trains in 2012, fifty-five of them with fatal result). There is, despite substantial declines in the New York crime rate, crime in the subways: robbery, assaults and murder. Fires break out, with smoke conditions following on. Subway workers do come to the rescue, often in ways they invent on the scene and on their own.
We don’t know how many people have called the hotline to report something suspicious—a package left standing alone or a person who, for one reason or another, is doing something out of line. In one of its publicity campaigns, the MTA ran advertisements on the sides of its buses and other places proclaiming, “Last year 1,944 New Yorkers saw something and said something.” I am convinced this number came out of the air. No official at the MTA could trace its source, and the New York Times reporter who similarly tried to pin it down also failed. We can surely conclude that, especially given the nature of New Yorkers to see and say things, there have been many calls. In some cases, callers used the hotline to finger a person against whom they held a grudge, according to one security official with whom we spoke. Other cases involved profiling people who ‘look Arab.’
Fear of Flying
The world’s airports have become, with U.S. authorities certainly in the leadership, the mother of all modern security regimes. They have brought to the act of flying a special choreography and paraphernalia setup. Again the huge background fact: despite all the hullabaloo of metal detectors, surveillance cameras and ʻroutine questions, ’ U.S. airport security—like the subway apparatus in New York―has yielded up no terrorists, nor charges of terrorist intent. There really have been people who have tried to blow up planes. But when they are caught, it is because fellow passengers or flight attendants detect something wrong and take direct action (again, as our subway workers routinely do in regard to less draconian threats). On American Airlines Flight 63 from Paris to Miami, it was the flight attendants who spotted Richard Reid trying to ignite his shoe bomb; with the aid of several passengers they bound him up with seat belt extensions and headphone cords. A physician on board then shot him with a tranquilizer from the plane’s first-aid kit. During the commandeered flight over Pennsylvania on September 11 (United Flight 93), it was the passengers who fought the hijackers and who were able to alter the plane’s trajectory toward the White House or Capitol Building (the exact target is not known).
In the official systems, there are obvious and gaping holes left unaddressed and former top Transportation Security Administration (TSA) officials, several of whom I have interviewed, acknowledge them as confounding. Here is a key instance: the security gates themselves gather up a large crowd—before any inspection. The queue can contain more people than will ever be on a plane. It may be that it is the logistic possibility of creating the security choke point that makes it somehow seem an effective thing to do. Meanwhile, any car driver can mow down innocent people at pedestrian thoroughfares all over America. We avoid facing that problem because it would be so awkward to take on, just like the problem of searching air passengers before they can crowd at the gates. A security apparatus is put in place, this implies, not because it secures but because it is feasible to set up.
Security systems also follow from political expedience. TSA authorities know that planes are full of articles far more lethal than the contraband at the gates. On board, soft drink cans could be stripped into razor-sharp instruments; duty-free liquor bottles are weapons in waiting. Flight crew flashlights (large and heavy) along with all manner of other accessible onboard objects are potential assault weapons. Prisoners have a long history of innovative transformation of even the most mundane products into lethal weapons (like pieces of bed spring). The TSA itself tried to start allowing passengers to carry scissors on board, but flight attendants, passenger groups and some political leaders waged successful counter-campaigns.
Meanwhile, all travelers experience massive inconvenience, anxiety and risk of delay as guards root through their belongings. There are inevitable risks of racial and ethnic profiling (ridiculously misconceived at times) which often alienate people who need to be, whatever the nature of a threat or danger, allies. It is a harsh experience, as one wonders if metal is somewhere on (or in) our bodies; did we forget to pull our cell phone back out of the bin? The yelling of the guards, the fretting of children, and frustration with keys, luggage, shoes and other life elements increase fumbling and nervousness.
The consternation further throws the system out of whack: guards who see a nervous passenger will have to distinguish between somebody made anxious through nefarious intent versus a person just nervous from security itself. Confusing and chaotic conditions work against being able to distinguish the devious plotter (should they exist) from background normality. And woe to those who make jokes about it; they risk being detained, especially if they get near words like ‘bomb,’ ‘gun’ or ‘ridiculous.’ Vociferous complaint, so common for New Yorker subway users, is under fearful constraint. My moments in security give me at least a glimpse of a fascist order. Vulnerable to the guards around me and standing with no shoes and my most valuable possessions in a bin beyond my reach, I bottle up frustration and move on.
But maybe, some wonder as with the absence of attacks at the subways, isn’t all this exertion and, yes, sacrifice, the reason there have been no assaults on air travel? I doubt this one too. We seem to think ‘our’ terrorists specialize in airplanes and that’s it. But, as terrible experience indicates, terrorists do not so limit themselves to one particular venue: they blow up churches, schools, coffee houses, shopping malls and temples. They mow down bystanders with an ordinary passenger vehicle. I don’t believe, again in the American context and at least in the present era, that they are there.
Another possible explanation: maybe the security apparatus finds miscreants but then removes them from our view by, for example, charging them with lesser crimes that then do not gain media coverage. This doesn’t compute because of the very showy announcements that are made when a real live suspect is apprehended including, a very common circumstance, when the threat turns out to be at least questionable. For example, Mayor Michael Bloomberg and New York Police Commissioner Raymond Kelly held a widely covered press conference to announce the arrest of alleged terrorist Jose Pimentel in 2011—who continues to face trial on bomb-making charges. The Federal Bureau of Investigation (FBI) refused to participate in the case, one which turned out to involve charges against a hapless individual who, according to the FBI, lacked the “predisposition or the ability” to carry out the alleged plot. Security is a no-lose issue for public officials; they pile onto a popular bandwagon, perpetuating anxiety and the programs purporting to address it. If there were indeed people being caught, we would know about it.
Security now enters the very make-up of buildings in New York and elsewhere too, and nowhere more prominently than in the construction of the new World Trade Center skyscraper nearing completion at ground zero. An office building by function, it is a security apparatus by design. There is no other way to make sense of its architecture or its internal configuration. After the 9/11 attacks, there was a wondrous international competition that drew in the world’s most illustrious design firms, with many thousands of people coming to exhibitions with extensive citizen feedback workshops (an early gigantic enterprise was called “Listening to the City”). A star-studded design jury chose the team THINK—itself an assemblage of world-class architects—as the winner. A prominent element of their scheme was a vast ground-floor crystal lobby open to the rest of the site and downtown Manhattan.
In the end, nobody won. A first ‘compromise’ occurred when the governor of New York overruled the selection of THINK, deciding instead to give the award to Berlin-based Daniel Libeskind. But the then-leaseholder of the site, Larry Silverstein—who actually had the power to decide—hired his own architect, David Childs of Skidmore, Owings, and Merrill, to do the job. Even the much-watered down design that Childs then provided was to be eroded further still. After preparations were well underway for groundbreaking, security authorities required the building’s location be moved sixty feet from the chosen site. This was to keep it away from potential truck bombs from an adjacent street. And then, at an even later moment and out of the same concern over truck bombs, authorities required the bottom twenty stories to be encased in solid concrete with no windows (eliminating their potential use as offices). This makes it a unique building in the world.
The structure’s top portion was never slated to be rentable space, given the anxieties of its target potential. So the uppermost 408 feet are antenna spire, that’s about thirty floors of a normal office building and twice the height of the spire atop the Empire State Building. Boastfully and patriotically 1,776 feet tall to recall the year of American independence (the building had been initially dubbed “Freedom Tower”), it would be the highest building in the United States. But it is a building with nothing on the bottom and nothing on the top. Rather than a display of American power or authority, it taunts with bluster. The architecture critic of the New Yorker, Paul Goldberger, called it “Fear Tower.”
The bellicosity at ground zero was accompanied by the xenophobia that often comes with threat. So plans to build an Islamic community center, called Cordoba House, a few blocks distant were met with condemnation. The facility was to contain meeting rooms, a theater, fitness center and swimming pool, as well as a prayer space—hence earning the sobriquet “ground zero mosque.” Families of 9/11 victims called it “a gross insult” to the memory of their loved ones, and politicians—Mayor Bloomberg was not among them—voiced energetic opposition as well. Resistance to anything Muslim contrasted with affirmation of anything to do with making the site militarily secure, including intense electronic visual surveillance and gauntlets of guards checking visitors for weapons or incendiaries. One might argue, and as indeed some advocates for the Islamic center have done, that bringing more knowledge of the Muslim world into America might increase understanding in the country and also, no small matter, make the United States more attractive to people who otherwise might be disaffected. In other words, inclusion—relaxed inclusion—can enhance safety.
An amazing thing about 9/11 was the survival of so many people, even as the twin towers flattened like pancakes. About 17,000 individuals who were on site got out. They did so not through fancy technologies or guards hunting for malefactors, but through some very old-fashioned practices. They went down the stairs. They could literally see where to go and understood the route to take—facilitated to be sure by prior drills for workers in the building. They helped themselves and one another, as is also routine practice in the subways and on airplanes.
Mundane Stuff that Works
Such simple elements as stairs and mutual helping are not usually thought of as part of security systems. Instead, security is more typically run as a military operation and with a lot of aggressive hardware. But the stairway-as-hero tips us off to a deeply alternative way of thinking, including what to do, what to build, and how to do it. So in the subways we should create better ventilation. Simple. That would mean more survival no matter what kind of device or noxious substance got loose in the environment. It would improve health and chances for survival no matter the source of danger. Quite crucially, it would provide better air quality as an amenity of everyday life (maybe even air conditioning in the summer, heat in the winter!). Likewise, the sound and sign systems: by making information delivery clearer, exiting would be more efficient in case of an emergency but in the meantime—day in and day out—people would have a better chance of knowing where they are going. Ditto lighting: bring it on stronger and fewer people will fall onto the tracks, trip down the stairs or slip in the long hallways.
And there is a list for the airports. Each encounter should be consciously designed to enhance calm and provide help for those in need rather than a way to herd and command. Lines that assemble targets need to be shortened or done away with altogether. Restrictions of what to take on board should be intelligently informed by actual risks and dangers, not make-believe scenarios. People ought even to be able to make jokes—jokes do give information about the jokester, especially if it is correlated with other available cues.
TSA guards (or other airport employees) should be right there to help people hoist their packages onto the conveyer belts and hold prams while parents adjust to their children’s needs. There should be helping hands. Like the jokes, helping informs. Anyone who has helped a child put on a jacket knows that is when you find there may be a pain or injury, a fever, or that the pocket contains a stolen cookie (or heavy instrument!). As it is, TSA employees are for security only with helping (or pleasantness, or wit, or heaven help us beauty) regarded as the opposite of security rather than facilitating it. At budget times, governments treat improvements like ventilation and helpfulness as the opposite of security, or at least irrelevant to it. That is bad thinking.
Instead, interventions for security should always be based on good design and recognition that organizations and people have multiple goals, with getting from one place to another being one of them. At the airport and everywhere else, anything done in the name of security should improve the routines of life, no matter what happens including if nothing happens—which is the far most likely outcome. Given the ambiguity of what to do anyway, why not do something decent?
Threats do exist, of course, and it is reasonable to be alert; vast enterprises of intelligence gathering exist to deal with them and they deserve (and receive) appropriate critique and examination. For everyone, including those in the rich and placid countries, they decrease the sum total of life quality and with little, if anything, positive to show for it.
Harvey Molotch is professor of sociology and metropolitan studies at New York University. He is the author of Where Stuff Comes From: How Toasters, Toilets, Cars, Computers and Many Other Things Come to Be as They Are and Urban Fortunes: Toward a Political Economy of Place (with John Logan). His most recent book is Against Security: How We Go Wrong at Airports, Subways, and Other Sites of Ambiguous Danger.
The Trial of Chelsea Manning
In February 2010, during a mid-tour leave, a 22-year-old United States Army private named Bradley Manning walked into a Barnes & Noble bookstore in Rockville, Maryland. The junior military intelligence analyst began uploading hundreds of thousands of classified U.S. government documents to WikiLeaks, the online publisher. In collaboration with WikiLeaks, the New York Times, Guardian andDer Spiegel later published extensive reports based on the documents.
Manning was initially arrested in May 2010 on suspicion of having disclosed what military prosecutors then believed was a classified video of a July 2007 U.S. air strike in Baghdad. The helicopter attack had injured two children and killed at least twelve civilians, including two Reuters journalists. A month before Manning’s arrest, WikiLeaks had published the video, which it entitled Collateral Murder. Despite a U.S. Central Command classification review later determining that the video was in fact unclassified, military prosecutors nevertheless charged Manning with espionage for its unauthorized disclosure.
Military prosecutors later accused Manning of disclosing four datasets containing 483,562 army field reports from Iraq and Afghanistan, 251,287 diplomatic cables, and approximately 765 detainee profiles of the men and children imprisoned at Guantanamo Bay. Manning was tried by court-martial at Fort Meade, Maryland, on twenty-two charges, including aiding the enemy, espionage, exceeding authorized access, stealing U.S. government property and wanton publication.
Manning spent a year and a half in pretrial confinement, apparently longer than any accused awaiting court-martial in U.S. military law. The presiding military judge, Colonel Denise Lind, nevertheless ruled that the government had not violated the defendant’s right to a speedy trial. The legal proceedings began in December 2011 and continued for the next twenty months, ending in August 2013.
While Lind eventually acquitted Manning of aiding the enemy (the most serious charge, which carried a life sentence), she found Manning guilty of twenty other crimes and handed down a sentence of thirty-five years in prison. Though Lind had ruled that a portion of Manning’s confinement had been excessively harsh and unlawful, she granted Manning only 112 days credit on the long sentence.
The day after sentencing, Manning issued a statement through her defense counsel declaring her gender to be female, and asking that she be called Chelsea and referred to with feminine pronouns.
“In Iraq death always has its way.” So begins a poem by Manning’s commanding officer, Master Sergeant Paul Adkins. A Secretary of the Army investigation into Manning’s command found that Adkins, a published poet and the highest-ranking non-commissioned officer in the intelligence shop where Manning worked, had been derelict in his duties. He was subsequently demoted to Sergeant First Class. According to the investigation, Adkins failed to inform higher command of an April 2010 email that Manning had sent to him in which she described her gender identity struggles. Manning had attached to the email a photo, which she had taken of herself during her leave in February 2010, dressed in a feminine wig and cosmetics. Adkins testified at Manning’s court-martial that he failed to inform his command of Manning’s email because he was short on intelligence analysts like Manning who specialized in the Shiite militias. Gender dysphoria can be grounds for administrative separation from the U.S. Army.
Before deploying to Iraq, Manning had worked on worldwide intelligence briefs for the commander of the Second Brigade Combat Team at Fort Drum in Upstate New York, home of the 10th Mountain Division of the U.S. Army. The 2nd Brigade formed part of the army’s global response force, on call in case troop surges were needed anywhere in the world. In the garrison’s intelligence shop, Adkins also tasked Manning with rebuilding the “incident tracker.” This required Manning to back up hundreds of thousands of military field reports called Significant Activities, or SIGACTS, from the war in Afghanistan, where the 2nd Brigade was expected to deploy.After Manning’s unit was reassigned to Forward Operating Base Hammer, a few miles east of Baghdad, she followed suit and created another backup of SIGACTS from the war in Iraq. The backups were made on read-writable CDs and stored in the intelligence shop’s shared conference room at FOB Hammer. Analysts could access the backups during periodic interruptions to network connectivity that occurred during deployment.
SIGACTS are normally housed in a U.S. Central Command database called the Combined Information Data Network Exchange (CIDNE), which was accessible on a Department of Defense classified network called SIPRNet. SIPRNet contained information classified up to the level of “secret.” Almost all the information the military presents to the White House and Congress about the wars in Iraq and Afghanistan originates in the CIDNE database. Thousands of military personnel, government employees and contractors have access to CIDNE’s various types of reports, including human intelligence reports, or HUMINT, as well as the SIGACTS.
Manning disclosed 483,562 SIGACTS from the CIDNE-Iraq and the CIDNE-Afghanistan databases. WikiLeaks later published the material as the Iraq War Logs and the Afghan War Diary. Manning did not, however, disclose the other kinds of reporting from the CIDNE database, like HUMINT, which contained intelligence sources and methods. The SIGACTS that Manning disclosed, military prosecutors admitted at trial, only represent 24 percent of CIDNE. Manning told Lind that she believed that the classification determination of the SIGACTS (most of which were marked “secret”) was based primarily on their being housed on SIPRNet. While she knew the reports were “sensitive at the time of their creation,” she told the court that she believed that their sensitivity decreased “within forty-eight to seventy-two hours, as the information [was] either publicly released, or the unit involved [was] no longer in the area and not in danger.”
Our Foreign Policy
“Death could not just visit my house anytime it felt like filling its black palms,” reads another line of Adkins’ poem. The SIGACTS that Manning uploaded to WikiLeaks are filled with references to the ubiquity and seeming triviality of death in wartime Iraq. Manning regularly researched and reviewed the ground-level accounts of events in Iraq and Afghanistan during her long shifts at FOB Hammer and became deeply troubled by them. At her trial, Manning said she released the SIGACTS because she believed that a “detailed analysis of the data over a long period of time by different sectors of society might cause society to reevaluate the need or even the desire to engage in counterterrorism and counterinsurgency operations that ignore the complex dynamics of the people living in the affected environment each day.”
She further testified:
In attempting to conduct counter-terrorism or CT and counter-insurgency COIN operations, we became obsessed with capturing and killing human targets on lists and not being suspicious of and avoiding cooperation with our host nation partners, and ignoring the second and third order effects of accomplishing short-term goals and missions.
I believe that if the general public, especially the American public, had access to the information contained within the CIDNE-I [Iraq] and CIDNE-A [Afghanistan] tables this could spark a domestic debate on the role of the military and our foreign policy in general as it related to Iraq and Afghanistan.
Manning removed the read-writable CD backups from the conference room. In her containerized housing unit, she transferred the files to an SD card, and transported them home on her mid-tour leave. Prior to uploading the material to WikiLeaks, she called the Washington Post. She spoke with a reporter, who expressed skepticism about Manning’s claims and said that she would check with thePost’s senior editors. Manning then called the telephone number for the public editor at the New York Times and left a voicemail message, but received no response. In all, Manning downloaded documents between February and April in 2010, and uploaded them to WikiLeaks at various times in the same period both during her mid-tour leave and while at FOB Hammer in Iraq.
Cynicism and a lack of critical thought defined the ethos of the intelligence shop at FOB Hammer where Manning worked. A sign hung over the desks of the targeting analysts there: “The individuals that own this office are in the business of catching shit bags. If you think for one second you can come in here and bug us with sissy shit you might want to rethink your pathetic life.” A Central Intelligence Agency Red Cell memo that Manning disclosed to WikiLeaks in March 2010 was unapologetically entitled, “Afghanistan: Sustaining West European Support for the NATO-led Mission—Why Counting on Apathy Might Not Be Enough.” Manning told Lind that after discovering the CIA memo, she “had difficulty believing what this section was doing.” Manning was also alarmed by the “seemingly delightful bloodlust” of the aerial weapons team that she viewed in the video of the 2007 U.S. airstrike in Baghdad. Manning uploaded the video to WikiLeaks in February 2010, along with information on the rules of engagement in Iraq for the years 2006 and 2007.
Manning said that the helicopter pilots in the video “dehumanized the individuals they were engaging and seemed to not value human life by referring to them as ‘dead bastards’ and congratulating each other on the ability to kill in large numbers.” She compared the pilots’ behavior “to a child torturing ants with a magnifying glass.” Manning’s co-worker, a targeting analyst named Specialist Jihrleah Showman, had originally found the video within the targeting section’s folder on the brigade’s shared drive. Showman testified that neither she nor her commanding officers ever discussed the rules of engagement while viewing the video in the intelligence shop.
Defense counsel David Coombs said in his closing arguments that Manning realized she could “no longer just ignore the fact that these are real lives being lost and real people dying.” In a letter to theGuardian published on October 9, 2013, Manning described herself as a transparency advocate. “I feel that the public cannot decide what actions and policies are or are not justified if they don’t even know the most rudimentary details about them and their effects,” she wrote.
The 2nd Brigade’s mission in Iraq was to train the Iraqi Federal Police. The partnership included intelligence sharing. The 2nd Brigade also shared intelligence with the Iraqi presidential brigade and the National Iraqi Intelligence Agency. Classified computers in the 2nd Brigade’s intelligence shop were equipped with CD burners to distribute intelligence to their Iraqi partners.
Iraq’s intelligence and law enforcement agencies were divided along sectarian and political lines since the restructuring of the Iraqi state after the U.S.-led invasion toppled Saddam Hussein’s regime in 2003. The Bush administration authorized the creation of the Iraqi National Intelligence Service (INIS) and Congress earmarked $3 billion for its operations between 2003 and 2007. Some of the money wound up supporting paramilitary units that effectively became Shiite-dominated militias and death squads carrying out personal and political vendettas in their search for Sunni insurgents who supported Saddam Hussein. The template for the U.S.-backed counter-insurgency is what journalist Peter Maass has called the “Salvadorization” of Iraq, a reference to the U.S. proxy wars in El Salvador and Nicaragua in the 1980s. U.S. military counter-insurgency experts had reportedly advised the newly formed Iraqi Special Police Commandos. The Guardian reported in March 2013 that the Iraqi Special Police Commandos “conducted some of the worst acts of torture during the U.S. occupation and accelerated the country’s descent into full-scale civil war.”
When Prime Minister Nouri Al-Maliki of the Shiite Islamic Dawa party came to power in 2006, he mistrusted the CIA-funded INIS, which was headed by a Sunni who led a failed CIA-backed coup against Hussein in 1996. A decade later, four INIS agents were suspected of being involved in the kidnapping of an Iranian diplomat suspected of ties to Shiite insurgents. The diplomat later alleged that the CIA had tortured him. Al-Maliki subsequently established his own intelligence agency headed by a Shiite under the Ministry of State for National Security Affairs (MSNS). Fueled by the competing spheres of influence between the U.S. and Iran, Sunni and Shiite factions within both the INIS and the MSNS conducted systematic campaigns to eliminate rivals in an escalating battle for influence and control over the intelligence and security apparatus in Iraq.
“Everything Started Slipping”
Three weeks after her trip to Barnes & Noble, now back in Iraq, Manning was ordered to investigate the arrest of fifteen individuals at a printing press in the Karada district of Baghdad. The detentions had been a joint operation between subordinate commands of the 2nd Brigade Combat Team and the Iraqi Federal Police (IFP). The IFP accused the detainees of publishing “anti-Iraqi” literature; she was told to find out who the “bad guys” were.
Manning established that none of the detainees had any ties to suspected terrorists or militia groups; nor were they carrying out “anti-Iraqi” activities. Pictures from the scene of the arrest included images of the fifteen suspects, pallets of unprinted paper, and high-resolution copies of the printed material they had supposedly sought to publish. When Manning had the “anti-Iraqi” literature translated, it turned out to be a benign treatise on public corruption in Al-Maliki’s government entitled, “Where Did the Money Go?” Upon discovering the discrepancy, Manning informed her command that the detainees were dissidents, not militants. Manning said her superiors “told me to quote ‘drop it’ unquote and to just assist them and the Federal Police in finding out where more of these print shops creating quote ‘anti-Iraqi literature’ unquote were.”
In May 2010, Manning initiated contact with Adrian Lamo, a former computer hacker. Lamo decided to contact U.S. law enforcement and become a government informant when Manning initially asked him: “[I]f you had unprecedented access to classified networks fourteen hours a day, seven days a week, for eight plus months, what would you do?” Recounting events around the arrest of the fifteen Iraqis at the printing press, Manning told Lamo that her command told her to “shut up” and explain how to assist the IFP in making more arrests. “Everything started slipping after that,” she told Lamo in the online chat. “I was actively involved in something that I was completely against.”
When Manning spoke about the fifteen detainees to other analysts in the intelligence shop as well as to her non-commissioned officer in charge, “some were sympathetic,” she said in court, “but no one wanted to do anything about it.” Manning’s co-worker, Sergeant David Sadtler, said in a sworn statement for the Secretary of the Army’s investigation that Manning thought, “no one cared about the mission.”
In court, Manning told Lind, “I knew that if I continued to assist the Baghdad Federal Police in identifying the political opponents of Prime Minister Al-Maliki, those people would be arrested and in the custody of the Special Unit of the Baghdad Federal Police and very likely tortured and not seen again for a very long time—if ever.”
Manning also said in court that she decided to give the information to WikiLeaks in hopes of generating media attention preventing further IFP crackdowns on Al-Maliki’s political opponents in the run-up to the Iraqi elections. After uploading the information to WikiLeaks via its secure transfer protocol, Manning said that someone from the WikiLeaks organization requested more information in order to verify the story. WikiLeaks has never published any information about the arrest of the fifteen detainees.
Around the time that Manning was tasked to investigate the detainment of the fifteen Iraqis, brigade commanders began feeling that their soldiers were too “focused on the ground” and “they needed a bigger picture,” according to the highest-ranking intelligence officer in the brigade, Captain Steven Lim. Headquarters directed Lim to send his intelligence analysts a link to the State Department’s Net-Centric Diplomacy database, which housed diplomatic cables from across the world. Most of the cables were unclassified or confidential. Cables housed in the NCD database were intended for wide distribution among at least one million U.S. government employees and federal contractors. Lim emailed the analysts a link to the NCD, no password required, and encouraged them to incorporate the cables into their work product.
The day after the arrest of the fifteen detainees, the U.S. Embassy in Baghdad sent a diplomatic cable to the CIA, National Security Council and other U.S. agencies reporting that Al-Maliki had fired 376 officers from the Iraqi security and intelligence services and replaced them “with inexperienced political officers loyal to his Shiite Dawa party.” The embassy said that Al-Maliki was positioning “his own people within the intelligence agencies to eliminate internal opposition in the run-up to the elections.” Iraqi and American observers, said the cable, found the development “troubling.”
After WikiLeaks published the Iraq War Logs, Amnesty International and the United Nations Special Rapporteur on Torture urged President Barack Obama to order an investigation into the complicity of U.S. forces in handing detainees over to the Iraqi security forces, who then tortured them. “U.S. authorities failed to investigate hundreds of reports of abuse, torture, rape and even murder by Iraqi police and soldiers whose conduct appears to be systematic and normally unpunished,” the Guardian reported in October 2010.
According to another Guardian report published in January 2012, Iraqi security officers were “systematically arresting people on trumped-up charges, torturing them and extorting bribes from their families for their release.” Likewise in a McClatchy-Tribune report published in June 2012, Al-Maliki’s security services were found to have detained more than a thousand members from opposing political parties, “many of them in secret locations with no access to legal counsel, using ‘brutal torture’ to extract confessions.”
The lack of transparency in the Manning court-martial raises serious questions about the justice of her conviction. The trial record totals about 45,000 pages, believed to be the longest in U.S. military law. Yet eighteen months into the proceeding, the public was still forbidden access to more than 30,000 pages of court filings and rulings. The failure to allow contemporaneous access to court documents caused irrevocable harm to the public’s right to understand and scrutinize the conduct, case law, arguments, and opinions of both trial and defense counsel and the presiding military judge. The charge of aiding the enemy is one of only two punitive articles under the Uniform Code of Military Justice that applies to “any person” and not solely military personnel. This fact is all the more reason that the public had a right to access the court record.
Manning’s conviction and sentencing reflects President Obama’s unprecedented campaign against whistleblowers by employing the Espionage Act, a 1917 statute intended for spies. In January 2011, Obama’s Justice Department brought an espionage case against Jeffrey Sterling, a former CIA employee accused of leaking classified information to a reporter at the New York Times. In documents related to the case, Department of Justice prosecutors argued that leaks to the press are a “greater threat to society” than when spies provide classified information to a foreign government because “every foreign adversary stands to benefit” from the leaks.
The defense argued that Manning acted with good intentions to inform the public, and that his disclosures did not lead to actual damage. Colonel Lind, however, ruled that Manning’s motive for the disclosures was not relevant at trial. Such evidence, then, could not be used to mitigate the accusation, drawn from the language in the Espionage Act and in the Computer Fraud and Abuse Act (CFAA), charges that Manning had “reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation.”
Crime of Espionage
Manning was convicted on six Espionage Act offenses and one CFAA offense. For the Espionage Act and the CFAA charges, most of the evidence critical at trial remained hidden under black-ink redactions or within at least 229 sealed unreleased court exhibits. The secrecy reached an almost surreal quality, given that the charged documents are publicly available on the Internet. The fact that most of the charged documents were legally classified, despite a defense request to declassify them for trial, prevented Manning’s lawyers from citing them openly in court. It also limited the defense’s ability to call witnesses, since any potential witnesses were required to have security clearances to handle the classified but publicly available material.
Military prosecutors then selectively declassified two sets of documents for use in their case against Manning for “aiding the enemy” and “wanton publication.” One set of declassified documents was material obtained during the May 2011 U.S. raid on Osama Bin Laden’s compound in Abbottabad, Pakistan. The documents included a letter from Bin Laden to a member of Al-Qaeda requesting Department of Defense information, and a response to Bin Laden attached to which were the Afghan War Logs and Department of State “information.” Yet, a video exists of Bin Laden recommending a book by author and Washington Post reporter Bob Woodward. Journalist Glenn Greenwald has asked why Woodward and his high-level sources have not been similarly charged with “aiding the enemy.” “This question is even more compelling,” Greenwald wrote in the Guardian in January 2013, “given that Woodward has repeatedly published some of the nation’s most sensitive secrets, including information designated Top Secret—unlike WikiLeaks and Manning, which never did.”
The other documents declassified at trial by military prosecutors for use in their case against Manning for “aiding the enemy” and “wanton publication” was a 2008 U.S. Army Counterintelligence Center (USACIC) memo on WikiLeaks, which was primarily sourced from public information. Manning was eventually convicted under the Espionage Act for disclosing the USACIC memo to WikiLeaks.
Manning was convicted on the Espionage Act and CFAA offenses for probable, not actual, harm. Military prosecutors were required to prove that the information charged under the Espionage Act was related to national defense and closely held, meaning it was not already lawfully in the public realm prior to Manning’s disclosure. A defense witness testified at trial, for example, that sixty-two of the 102 SIGACTS charged against Manning under the Espionage Act contained content that was also found in public reporting prior to Manning’s disclosure.
Evidence about the lack of actual damage was excluded at trial. Military prosecutors called Original Classification Authority (OCA) witnesses from each of the victimized agencies to testify. The OCA testified that charged information was properly classified at the time of its release and that its disclosure “could” cause damage. The OCA’s classification reviews weighed heavily in Lind’s determination to convict Manning on six Espionage Act offenses.
Coombs argued that the OCA failed to cite specific instances of information within the charged material that could cause damage. Instead, he said, they used generalities and buzzwords. During closing arguments, Coombs cited the classification review for the charged documents concerning the May 2009 U.S. bombing in the Farah Province of Afghanistan, which was widely reported on by the press. The OCA, said Coombs, testified that the classification review “didn’t consider open-source material or unclassified publications like various army regulations or field manuals.”
Much of the information disclosed by Manning was in fact already public, unclassified, improperly classified, or marked at the lowest levels of classification and widely circulated among government and military employees and contractors. The Washington Post reported that “nearly half a million government employees and contractors with security clearances” had access to the diplomatic cables disclosed by Manning. Some 4.2 million government and military personnel and contractors have security clearances for the highest level of charged information classified at the “secret” level.
President Obama himself has said the information revealed in the WikiLeaks publication of the Afghan War Diary was already known. Then-Secretary of Defense Robert Gates wrote a letter to the chair of the Senate Armed Services Committee explaining that a Department of Defense review of the leaked SIGACTS had “not revealed any sensitive intelligence source and methods.” Professor Derek Shearer of Occidental College, who served as ambassador to Finland during the Clinton administration, has argued that the diplomatic cables published by WikiLeaks did not contain secrets:
These are not really secrets that are in these cables… Most of the State Department reporting is done by younger junior officials … who were assigned to go to events or to meet people. In some cases the reporting is required by acts of Congress. And, it is not quite “make-work” but it is kind of one of the lower level forms of communications.
At a symposium on Wikileaks held at the University of Southern California in 2011, Shearer cited the Tunisian revolution as a positive outcome from the publication of the diplomatic cables. The revelation of the U.S. government’s negative view of dictator Zine El-Abidine Ben Ali is believed to have fueled anger against the Tunisian regime:
Some of this frank speaking, of not secrets, but just frank description of a country, had a positive outcome…. But, these cables are not the secret level in which the U.S. government operates. We have a whole separate system of much more secret reporting that comes through the intelligence officers in the embassies. And then we have a whole other channel, the defense intelligence operations—defense attaches’ reporting. So, the notion that some vital secrets of America were compromised by WikiLeaks, I think is not the case.
The OCA and other government witnesses also testified that enemies and foreign adversaries could use the large datasets to conduct “pattern analysis.” Yet, technically, Manning was charged under the “reason to believe” language found in the Espionage Act and the CFAA in relation to only 223 of the 735,614 documents contained within the four larger datasets she disclosed to WikiLeaks: specifically 116 diplomatic cables; 102 SIGACTS from the wars in Iraq and Afghanistan; and five Guantanamo Bay Detainee Assessment briefs. Military prosecutors failed to argue how the 223 charged documents could be used in any potential “pattern analysis” conducted by foreign adversaries or enemies. If military prosecutors wanted to use that argument in court, they should have charged Manning under the Espionage Act or the CFAA for more than 223 documents.
A similar problem arises when military prosecutors and their witnesses argued at trial and during the sentencing phase that the information Manning disclosed could potentially be used in future propaganda efforts by the enemies of the U.S. Elizabeth Goitein of the Brennan Center for Justice at New York University Law School has written that the absence of a “limiting principle” to the U.S. government’s expanding justifications for classification and its prosecutions of whistleblowers, who disclosed it, is alarming.“The government’s new justification for secrecy will be strongest when its conduct most clearly violates accepted international norms,” Goitein wrote in a piece published by Al Jazeera America in October 2013.“The reasons why people choose to align themselves against the United States—or any other country—are nearly as numerous and varied as the people themselves.” The Brennan Center has published a study asserting that over-classification itself is a threat to American national security. The argument is that democratic governance ceases to function when terabytes of information hide government waste, fraud, abuse and crimes. “Government secrecy has slipped its traditional moorings and is venturing forth into dangerous waters, where accountability and the rule of law cannot readily follow,” Goitein has said.
At sentencing, military prosecutors could not link any of Manning’s disclosures to known deaths. Instead, they offered evidence of the government’s mitigation efforts and the expert opinions of lifelong federal employees and contractors. These witnesses testified that the leaks affected diplomatic reporting and relationships with foreign governments. The evidence and testimony concerning damage or the lack thereof was offered in closed session or hidden under redactions in classified stipulations.
Manning’s defense maintained that any impact on bilateral relations was short term and temporary. Reuters reported that government reviews of the release of diplomatic cables caused only “limited damage to U.S. interests abroad despite the Obama administration’s public statements to the contrary.” A congressional aide briefed by the State Department was quoted saying the revelations were “embarrassing but not damaging,” The “Obama administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers,” the aide said.
“Aiding the Enemy”
The last time a U.S. soldier was charged with giving intelligence to the enemy via a media organization was in 1863 during the American Civil War. Private Henry Vanderwater, a Union soldier, was convicted of giving a command roster to a newspaper in Alexandria, Virginia, which later published it. Vanderwater, who willfully intended to provide the information to the Confederate army, was sentenced to several months in the brig. Manning, though acquitted of aiding the enemy, was nonetheless sentenced to more than three decades in confinement.
Manning faced life in prison if convicted of aiding the enemy. Yet while Lind acquitted Manning on that charge, she had rejected two defense motions to dismiss it altogether. That sets a chilling precedent for future whistleblowers and journalists who write about national security issues. When Lind asked the prosecution if it would have acted in the same way had the organization in question been the New York Times rather than WikiLeaks, the reply was “Yes, Ma’am.”
According to defense witness Professor Yochai Benkler of Berkman Center for Internet and Society at Harvard Law School, Lind’s failure to dismiss the aiding the enemy charge established a broad precedent. “Leaking classified documents to… newspapers can by itself be legally sufficient to constitute the offense of ‘aiding the enemy,’ if the leaker was sophisticated enough about intelligence and how the enemy uses the Internet,” he explained. In other words, all a prosecutor will have to prove in any future legal case against a national security whistleblower is that the accused knew that an enemy or foreign adversary of the United States used the media organization’s platform to collect intelligence.
Philip J. Crowley, the assistant secretary of state for public affairs who resigned over his statements that Manning’s treatment at Quantico was “stupid” and “unproductive,” has described Manning’s leaks as “industrial scale.” In reality, the leaks are proportional to the information age that Manning was born into.
Former Ambassador Shearer said at USC:
When I went out as ambassador it was the end of the kind of old-school style of what an ambassador did. And the idea was that if you had a message for the local government, you got a cable from Washington and it told you to deliver a message, and you would print out the cable. You would make an appointment. You would go over to the foreign ministry. You would give them a message. That was already almost out of date by the Clinton administration, because CNN had already created a twenty-four hour news cycle and many things that were happening that you might want to go tell the local government were already on CNN.… The Internet basically exploded during the Clinton administration. When Clinton came in there was about 400 websites, when he went out there was like 40 million.… But, now today, if you just go on the web and look at any American embassy or other country’s embassy, you are going to see a very vibrant embassy website. The ambassador is going to have a Twitter account. He is going to keep a blog or she will keep a blog. People will write in, locals, on their opinions and things. And, most of the old-time diplomacy has become what is now called in a broader sense public diplomacy. It is not just government-to-government, but public-to-public. And, there aren’t a lot of—there are technical secrets about weapons and some about troop movements, but most everything else is in fact public.
Manning’s conviction for the unprecedented offense of “wanton publication,” which is not tied to any existing punitive article under the Uniform Code of Military Justice or any other federal criminal violation—is intended to interdict the future leak of large datasets capable of being mined or modeled for revelations by digital journalists and organizations like WikiLeaks.
When asked by the military prosecutors if “mass document leaking is somewhat inconsistent with journalism,” Benkler said that large datasets like the Iraq War Logs provide insight that cannot be found in one or two documents containing a “smoking gun.” The Iraq War Logs, added Benkler, provided an alternative, independent count of casualties “based on formal documents that allowed for an analysis that was uncorrelated with the analysis that already came with an understanding of its political consequences.” According to the online organization Iraq Body Count, the Iraq War Logs revealed 15,000 previously unknown civilian deaths; the organization’s estimate of total violent deaths increased to 150,000, 80 percent of whom were civilians.
Manning’s leaks highlight the vital role that access to information plays in the deliberative process and oversight functions of the Congress and the press. Her trial illustrates the government’s battle for control over information in the digital age. It is a battle being waged against what Mike Rogers, chairman of the House Permanent Select Committee on Intelligence, calls the Internet’s “culture of disclosure.”
“I am the type of person who likes to know how things work,” Manning said in court. “As an analyst, this means I always want to figure out the truth. Unlike other analysts in my section or other sections within the 2nd Brigade Combat Team, I was not satisfied with just scratching the surface and producing canned or cookie-cutter assessments. I wanted to know why something was the way it was and what we could to correct or mitigate a situation.”
Manning is confined at the U.S. Disciplinary Barracks at Fort Leavenworth in Kansas. Her case must be reviewed and approved by the Convening Authority, Major General Jeffrey Buchanan. This process is referred to as “taking action” on a case. Buchanan has the power to disapprove any conviction and/or reduce Manning’s sentence. Once Buchanan takes action, the case will automatically be reviewed on appeal by the Army Court of Criminal Appeals (ACCA). Such a review by ACCA could take years. Manning’s defense attorney has filed an application seeking a presidential pardon from President Obama. Coombs says it is unlikely that the request will be granted. Obama has only granted nine pardon requests during his presidency, and he has never granted a pardon for someone that he has previously said “broke the law.” For her part, Manning appears to have appreciated the risks when she decided to release classified information. In her chats with Lamo, she expressed hope that the information would make a difference. She stated that she was willing to pay a heavy price for her decision, telling Lamo: “I wouldn’t mind going to prison for the rest of my life…”
Alexa O’Brien is an independent journalist who writes for the Guardian, Daily Beast, and other publications. She received a 2013 Freedom of the Press Foundation grant for her coverage of the Chelsea Manning trial. For her “outstanding work for justice for Manning” she was shortlisted for the 2013 Martha Gellhorn Prize for Journalism. On Twitter: @carwinb.
The World Through Arab Eyes
The World Through Arab Eyes: Arab Public Opinion and the Reshaping of the Middle East. By Shibley Telhami. Basic Books, New York, 2013. 240 pp.
The Arab uprisings since December 2010 have revolutionized parts of the Arab region, but they have also revolutionized how the world writes about it. The scholarship and serious popular literature on the Arab region in the West have vastly improved in the past few years, for the simple reason that authors have been forced to write about the realities of what ordinary Arab men and women have put on the global agenda. We still see the occasional piece of intellectual exhibitionism by oddballs and ideologues, as well as the occasional indigenous Arab knucklehead, who respond to the current turbulent state of the Arab transformations by decrying the inability of Arabs and Muslims to practice democracy or master the art of politics. The dominant trend, however, is clearly toward much more accurate writing on the Arab world, as millions of ordinary citizens express themselves and struggle to transform their societies, seeking to infuse them with the values of democracy, freedom, dignity and social justice that remain powerful and structural drivers of Arab identity.
Most serious scholars and media analysts at their best seek to answer two core questions. First, what are the meaningful changes in actors and power relations on the ground that are transforming the political-social orders of our region, and which of those changes are temporary or permanent? Second, what are the underlying values that define the peoples of the Arab countries, and how do those values shape the core aspirations, routine political conduct or occasional insurrectionary bursts of millions of Arabs? In other words, have we never had an Arab democracy because something in our values or culture prevents democracy from taking root? Or is the lack of democracy a reflection of the fact that our values are fine but our citizens simply have never had an opportunity to create such governance systems, because Arab countries in the past century have almost always been ruled by non-democratic autocrats or monarchs with the sustained approval of foreign powers from East and West alike?
In the attempt to define the most important changes that have occurred in the Arab region since the uprisings began, I would note two powerful and meaningful things: first, the birth of the Arab citizen as an individual who feels that he or she has rights and also has the ability to change society for the better; second, the birth of a public political sphere in which many established forces (armed forces, Islamists) and new actors (revolutionary youth, independent media) engage openly to shape their governance system, write their constitution and define their national values through participatory means under the rule of law. These two fundamental changes have caused a parallel change in how local and foreign narratives describe what is taking place in our region. The actors in this epic drama of national self-definition and self-determination—ordinary men and women and organized political forces—have also become the scriptwriters of the narratives about their own world.
This means that Arabs and foreigners alike have moved a long way recently toward narrating our Arab people and societies as we really are—and not as extremist ideologues here and abroad would imagine us. I am struck and delighted by the fact that the vast majority of recent media coverage of our region, along with scores of books and studies by Arabs and foreigners alike, delve into our varied realities across the different cultures of the Arab region rather than portray a monolithic and static region defined only by ancient religion or foreign colonial ravages. The important new elements now being studied include ever-evolving social movements, the erratic world of religion and politics, the durability and resurgence of the ‘deep state,’ the weak showing of civil society and secular politics, the imperatives of social justice and dignity, and the centuries-old interventions of regional and foreign powers that seek influence or control in the region. Among the most impressive new developments are websites in the United States, Europe and Arab countries that daily compile a wide range of topical writing that is striking for its accurate narration of realities on the ground.
Shibley Telhami’s The World Through Arab Eyes: Arab Public Opinion and the Reshaping of the Middle East is, to my mind, among the most useful and readable of these offerings. I single it out because of its double advantage of analyzing current attitudes and developments across the region while also grounding that analysis in the past ten years of public opinion polling that Telhami has conducted across the Arab world. This combination buttresses Telhami’s current observations with a rich and ever-relevant body of factual historical data that both mirrors and also helps us to better understand the attitudes, values and aspirations of those ordinary men and women who have fought and struggled for nearly three years to take command of their own destiny.
Telhami’s combination of solid substance, readable style and pertinent analytical insights is brought to bear on a series of key dimensions of public opinion and political values and aspirations across the Arab world, including: the centrality of the Palestinian-Israeli conflict, the quest for democracy, religious-secular balances, perceptions of the current uprisings, the interplay between national and pan-Arab identities, the role of media, and attitudes to the United States, Israel, Iran and other major regional actors. One of the great services he provides here, as he does in all his writings and commentaries, is to point out in clear terms the complexities and relationships among the many dimensions of the issues that shape the worldviews of ordinary Arab men and women. So, religion, democracy, Palestine, and American or British foreign policy are all distinct issues in our lives and society, but Arab citizens often perceive them to be interconnected. The many ways in which Arabs simultaneously view the United States both positively and negatively are neatly explained in a chapter that touches on values, democracy, Palestine, Iraq and other issues—all of which feed into the cerebral and emotional processors that determine how an individual in fact views the United States with fear, respect, disdain and envy—without feeling any contradictions. Arab views of Iran are similarly analyzed with the nuance and multi-dimensionalism that actually shape how people view Iran, and how such views evolve in line with events in Iran and elsewhere.
Telhami’s closing chapter on how Arab public opinion will influence the reshaping of the Middle East is an outstanding summary of the likely implications of the current awakening and activation of Arab public opinion because it blends the hard facts of public attitudes with the unpredictable nature of political and social change. The eight points he makes touch on the varied transformations in the Arab countries and their enduring, evolving and pervasive nature, the role of other factors beyond public sentiments, changing regional power configurations, and—apologies to the wild ideologues of the West and our own Arab oddballs, but here it comes again—the continuing and central impact of Arab attitudes to the conduct of Israel and the United States.
Telhami once again shows the bounty of combining the best of American scholarly traditions with the fruits of on-the-ground research and analysis in the Arab world. He links current developments with a longer legacy of popular values and attitudes that will always shape those developments. He reminds us of the importance of mustering the honesty to try to really understand the sentiments and aspirations of millions of ordinary Arabs who are now turning their world—and perhaps the worlds of others—upside down.
Rami G. Khouri is director of the Issam Fares Institute for Public Policy and International Affairs at the American University of Beirut, and editor-at-large of the Beirut Daily Star. On Twitter: @RamiKhouri.
Foreign Policy Begins at Home
Foreign Policy Begins at Home: The Case for Putting America’s House in Order. By Richard N. Haass. Basic Books, New York, 2013. 208 pp.
Richard Haass is a foreign policy establishment man upset with the establishment. The former head of the State Department’s Policy Planning Staff and current president of the Council on Foreign Relations laments that a decade of poor strategic choices has left the United States in an untenable position to exercise credible global leadership. Haass wants Foreign Policy Begins at Home to serve as a guidebook for righting the ship: downsizing America’s expectations for what it can do abroad while strengthening its domestic foundations so that its engagement with the world is on a sustainable, credible basis: “[T]his is a book that argues for less foreign policy of the sort the United States has been conducting and greater emphasis on domestic investment and policy reform.”
Haass begins with a whirlwind tour of the international political status quo, an overview that will be familiar to readers of Thomas Friedman or Joseph Nye. The United States remains the prime world power, but that power is more diffuse than it was after the end of the Cold War (he calls the current situation “nonpolarity”), due in part to a variety of factors: economic and technological globalization, which has facilitated the economic catch-up of several countries in the developing world; the anachronisms inherent in international institutions, which do not reflect this reality (too much Europe and not enough Asia on the UN Security Council, for example); and a decade of poor foreign policy decision-making, principally the ill-considered invasion of Iraq, and the 2009 surge in Afghanistan, which Haass argues has weakened America’s position in the world.
Haass’ way forward is what he calls his doctrine of Restoration—the first pillar of which is a reorienting of U.S. foreign policy away from the armed nation-building agenda that marked much of its post-Cold War foreign relations. The U.S. needs to downsize its ambitions and, in the case of its military, some of its budget outlays. Haass rightfully does not indulge in the excessive fearmongering of many who write about post-September 11 international politics: “Whatever challenges and threats exist (and they surely do exist) tend to be either structural—a lack of machinery and cooperation to meet the problems intrinsic to globalization—or, in one way or another, limited in their impact, including North Korea, Iran and any number of weak states, such as Pakistan.”
Haass considers and then dismisses a series of plausible alternatives. Democracy promotion risks alienating useful allies (Saudi Arabia as a regional balancer to Iran). Humanitarian intervention commits U.S. attention and resources everywhere. Counterterrorism risks imposing a fortress mentality on the U.S., both domestically and around the world. Haass is much more a fan of integration—bringing more countries into the web of international and multilateral institutions. Under such a rubric, the principal U.S. focus would not necessarily be what a particular nation does domestically, but how it behaves on the international stage.
A strategy of integration is a “compass for the long term”; before it can begin, however, the U.S. needs to pursue Restoration—a refocus on domestic issues and a realignment of strategic choices abroad. Haass sees an end to strategic preoccupation with the Middle East, especially armed intervention. He is a fan of the Obama administration’s pivot to East Asia (or, his preferred term, “rebalancing”), though he wishes there were less emphasis on its military aspects. For Haass, economic frameworks such as the Trans-Pacific Partnership are more important than additional troop deployments.
Haass’ attitude throughout the foreign policy section is similar to that of another former head of Policy Planning, writing in a previous generation about America’s propensity for biting off more than it can chew, strategically: “Let us recognize that there are problems in this world that we will not be able to solve, depths into which it will not be useful or effective for us to plunge, dilemmas in other regions of the globe that will have to find their solution without our involvement” (George F. Kennan, American Diplomacy 1900-1950, published in 1952).
Haass makes an important contribution to the national security and foreign policy discussion by tying strategic humility to refocusing on American domestic strength. For a strategy of integration to be attractive, for other countries to want to join the networks of international institutions that the United States helped to create, the U.S. needs to shore up the domestic foundations of its power. “[O]ne of the most important foreign policy strengths this country possesses,” Haass writes, “is the demonstrated success of its economy and political system.” That system has been tarnished over the past decade. America ranks low in infrastructure, education and health outcomes, and its debt and deficit are unsustainable. Five core elements could, if adopted, reverse this decline: 1) Reducing the federal deficit and the debt to GDP ratio; 2) Establishing a comprehensive energy strategy; 3) Improving education; 4) Upgrading the nation’s infrastructure; and 5) Modernizing immigration.
Unfortunately, Haass leaves his discussion of politics to last. Here his attempt to break through the Washington conventional wisdom falters. His domestic recommendations are simultaneously political, in that they represent the wish list of many political moderates, and oddly separated from politics, in that his book does not appreciate the causes of the current political stagnation nor does it envision practical steps to resolve it. Haass makes a push for a basket of bipartisan solutions that would feel just as at home in a campaign book. Some of his ideas are sensible, like private/public partnerships for infrastructure spending and comprehensive immigration reform. Others are counterproductive and potentially cruel, such as cuts to disability payments. Tellingly, his wish list fails to acknowledge that one party’s political strategy is dedicated to the gridlocked status quo, the same status quo that threatens American leadership abroad.
There are a handful of illustrative examples of this theme. The ascendant conservative wing of the Republican Party is dead set against a carbon tax—a very good Haass proposal, especially when paired with indexing the gasoline tax to inflation. Haass says he wants $3 in spending cuts for every $1 in tax increases to tackle the budget deficit and national debt; the 2012 Republican presidential candidates said they would walk away from a 10-to-1 deal—that’s how dead set they would be against tax increases. Haass criticizes the U.S. health care system for its “inadequate focus on preventive health” and its “emphasis on prolonging life where there is little reason to believe treatment will improve health.” Both of those problems are addressed by the Patient Protection and Affordable Care Act, which provides for measures to improve preventive health (free annual physicals) and promote end-of-life care. Republicans have voted to repeal the act forty times. Indeed, Haass completely fails to discuss Obamacare as part of his program to rebuild America’s foundations. A law like this, one that is due to extend health coverage to millions of Americans, allowing them to be more economically productive and happier overall, should be the cornerstone of any discussion of restoring America’s greatness. In that respect, the omission is remarkable.
Not much has occurred in the intervening two years to raise anyone’s optimism. It would be one thing if one were discussing discrete policies that people of different viewpoints could disagree on. Yet there is a clear pattern in Washington right now. On issue after issue, Republicans argue that the government’s role in the economy is illegitimate. Thomas Mann and Norman Ornstein, as respected scholars of the legislative branch as one is likely to find, famously put it this way: “[The Republican Party] is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.” It is hard to square this description with Haass’ call for sensible compromise and principled political leadership by both sides.
The word “Republicans” only appears in the main text in pairing with Democrats. So the reader is left with the impression that the Democrats’ reluctance to compromise is on the same order of magnitude as Republicans’ reluctance to compromise. That is not borne out by the evidence.
Any analysis that does not recognize the imbalance of this view will be incomplete. It will not be overcome, in the short term, by any of the recommendations Haass has put forward. That is a shame, because Haass has identified serious deficiencies in the economic and social framework of this country. His proposals are worthy of serious debate. The tragedy is that one side of the debate is dominated by members who are not interested in the give and take Haass would like to see.
Neil Bhatiya is a policy associate at the Century Foundation, focusing on U.S. foreign policy in South Asia. He was previously a research fellow at the Streit Council for a Union of Democracies. On Twitter: @NeilBhatiya.
United Sates National Security Agency
Editor’s Note: On June 5, 2013, Britain’s Guardian newspaper began publishing reports revealing the scale of domestic surveillance by the U.S. National Security Agency. On June 9, the newspaper revealed that the “whistleblower” behind the revelations was an NSA contractor, Edward Snowden.
Statement by James R. Clapper, Director of National Intelligence, on Recent Unauthorized Disclosures of Classified Information, Washington, DC (June 6, 2013)
Source: Office of the Director of National Intelligence
The highest priority of the Intelligence Community is to work within the constraints of law to collect, analyze and understand information related to potential threats to our national security.
The unauthorized disclosure of a top secret U.S. court document threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation.
The article omits key information regarding how a classified intelligence collection program is used to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties.
I believe it is important for the American people to understand the limits of this targeted counterterrorism program and the principles that govern its use. In order to provide a more thorough understanding of the program, I have directed that certain information related to the “business records” provision of the Foreign Intelligence Surveillance Act be declassified and immediately released to the public.
The following important facts explain the purpose and limitations of the program:
- The judicial order that was disclosed in the press is used to support a sensitive intelligence collection operation, on which members of Congress have been fully and repeatedly briefed. The classified program has been authorized by all three branches of the Government.
- Although this program has been properly classified, the leak of one order, without any context, has created a misleading impression of how it operates. Accordingly, we have determined to declassify certain limited information about this program.
- The program does not allow the Government to listen in on anyone’s phone calls. The information acquired does not include the content of any communications or the identity of any subscriber. The only type of information acquired under the Court’s order is telephony metadata, such as telephone numbers dialed and length of calls.
- The collection is broad in scope because more narrow collection would limit our ability to screen for and identify terrorism-related communications. Acquiring this information allows us to make connections related to terrorist activities over time. The FISA Court specifically approved this method of collection as lawful, subject to stringent restrictions.
- The information acquired has been part of an overall strategy to protect the nation from terrorist threats to the United States, as it may assist counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities.
- There is a robust legal regime in place governing all activities conducted pursuant to the Foreign Intelligence Surveillance Act, which ensures that those activities comply with the Constitution and laws and appropriately protect privacy and civil liberties. The program at issue here is conducted under authority granted by Congress and is authorized by the Foreign Intelligence Surveillance Court (FISC). By statute, the Court is empowered to determine the legality of the program.
- By order of the FISC, the Government is prohibited from indiscriminately sifting through the telephony metadata acquired under the program. All information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling. The court only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization. Only specially cleared counterterrorism personnel specifically trained in the Court-approved procedures may even access the records.
- All information that is acquired under this order is subject to strict restrictions on handling and is overseen by the Department of Justice and the FISA Court. Only a very small fraction of the records are ever reviewed because the vast majority of the data is not responsive to any terrorism-related query.
- The Court reviews the program approximately every 90 days. DOJ conducts rigorous oversight of the handling of the data received to ensure the applicable restrictions are followed. In addition, DOJ and ODNI regularly review the program implementation to ensure it continues to comply with the law.
- The Patriot Act was signed into law in October 2001 and included authority to compel production of business records and other tangible things relevant to an authorized national security investigation with the approval of the FISC. This provision has subsequently been reauthorized over the course of two Administrations―in 2006 and in 2011. It has been an important investigative tool that has been used over the course of two Administrations, with the authorization and oversight of the FISC and the Congress.
Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions. Surveillance programs like this one are consistently subject to safeguards that are designed to strike the appropriate balance between national security interests and civil liberties and privacy concerns. I believe it is important to address the misleading impression left by the article and to reassure the American people that the Intelligence Community is committed to respecting the civil liberties and privacy of all American citizens.
Government Accountability Project Statement on Edward Snowden and National Security Agency Domestic Surveillance, Washington, DC (June 14, 2013)
Source: Government Accountability Project
Recently, the American public learned that the National Security Agency (NSA) has conducted, and continues to conduct, wholesale surveillance of U.S. citizens through a secretive data-mining program. The program collects the phone records, email exchanges and internet histories of tens of millions of Americans who would otherwise have no knowledge of the secret program were it not for the disclosures of recent whistleblowers. The latest of these whistleblowers to come forward is former Booz Allen Hamilton federal contractor employee Edward Snowden.
As the nation’s leading whistleblower protection and advocacy organization, the Government Accountability Project (GAP) would like to be clear about its position on each of the following points that relate to these significant revelations:
I. Snowden is a whistleblower.
Snowden disclosed information about a secret program that he reasonably believed to be illegal. Consequently, he meets the legal definition of a whistleblower, despite statements to the contrary made by numerous government officials and security pundits. Sen. Rand Paul (R-KY), Sen. Mark Udall (R-CO), Rep. Loretta Sanchez (D-CA), Rep. Thomas Massie (R-KY), and Sen. Bernie Sanders (I-VT) have also expressed concern about the potential illegality of the secret program. Moreover, Rep. Jim Sensenbrenner (R-WI) who is one of the original authors of the Patriot Act, the oft-cited justification for this pervasive surveillance, has expressed similar misgiving.
II. Snowden is the subject of classic whistleblower retaliation.
Derogatory characterizations of Snowden’s personal character by government officials do not negate his whistleblower status. On the contrary, such attacks are classic acts of predatory reprisal used against whistleblowers in the wake of their revelations.
Snowden’s personal life, his motives and his whereabouts have all been called into question by government officials and pundits engaged in the reflexive response of institutional apologists. The guilty habitually seek to discredit the whistleblower by shifting the spotlight from the dissent to the dissenter. Historically, this pattern of abuse is clear from behavior toward whistleblowers Daniel Ellsberg, Mark Felt, Frank Serpico, Jeffrey Wigand, Jesselyn Radack and recent NSA whistleblower Tom Drake.
III. The issue is the message and not the messenger.
As a matter of course, whistleblowers are discredited, but what truly matters is the disclosure itself. Snowden’s revelations have sparked a public debate about the balance between privacy and security—a debate that President Obama now claims to welcome. Until Snowden’s disclosures, however, the government had suppressed the facts that would make any serious debate possible.
IV. Pervasive surveillance does not meet the standard for classified information.
Many have condemned Snowden for disclosing classified information, but documents are classified if they reveal sources or methods of intelligence-gathering used to protect the United States from its enemies. Domestic surveillance that is pervasive and secret is only a valid method of intelligence gathering if the country’s enemies include most of its own population. Moreover, under the governing Executive Order it is not legal to classify documents in order to cover up possible misconduct.
V. The public has a constitutional right to know.
In a democracy, it is simply not acceptable to discover widespread government surveillance only after a whistleblower’s revelations. Because of Snowden’s disclosures we now know that Director of National Intelligence James Clapper deliberately misled the Senate Intelligence Committee when he stated on March 12, 2013 that the NSA did not purposefully collect anytype of data from millions of Americans. Regardless of the justification for this policy, the public has a Constitutional right to know about these actions.
Unfortunately, the responsibility has fallen on whistleblowers to inform the public about critical policy issues—from warrantless wiretapping to torture. Whistleblowers remain the regulator of last resort.
VI. There is a clear history of reprisal against NSA whistleblowers.
By communicating with the press, Snowden used the safest channel available to him to inform the public of wrongdoing. Nonetheless, government officials have been critical of him for not using internal agency channels—the same channels that have repeatedly failed to protect whistleblowers from reprisal in the past. In many cases, the critics are the exact officials who acted to exclude national security employees and contractors from the Whistleblower Protection Enhancement Act of 2012.
Prior to Snowden’s disclosures, NSA whistleblowers Tom Drake, William Binney and J. Kirk Wiebe, all clients of GAP, used internal mechanisms—including the NSA chain of command, Congressional committees, and the Department of Defense Inspector General—to report the massive waste and privacy violations of earlier incarnations of the NSA’s data collection program. Ultimately, the use of these internal channels served only to expose Binney, Drake and Wiebe to years-long criminal investigations and even FBI raids on their homes. As one example, consider that Tom Drake was subjected to a professionally and financially devastating prosecution under the Espionage Act. Despite a case against him that ultimately collapsed, Drake was labeled an “enemy of the state” and his career ruined.
VII. We are witnessing the criminalization of whistleblowing.
During the last decade, the legal rights for whistleblowers have expanded for many federal workers and contractors, with the one exception of employees within the intelligence community. The rights of these employees have significantly contracted. The Obama administration has conducted an unprecedented campaign against national security whistleblowers, bringing more Espionage Act indictments than all previous administrations combined.
Moreover, at the behest of the House Intelligence Committee, strengthened whistleblower protections for national security workers were strippedfrom major pieces of legislation such as the Whistleblower Protection Enhancement Act (for federal employees) and the National Defense Authorization Act of 2013 (for federal contractors). If those protections existed today, Snowden’s disclosures would have stood a greater chance of being addressed effectively from within the organization.
The actions already taken against Snowden are a punitive continuation of what has become a “War on Whistleblowers.” Through a series of retaliatory measures, the federal government targets federal employees who speak out against gross waste, illegality, or fraud, rather than prosecuting individuals engaged in high crimes and misdemeanors. So far as we know, not one person from the NSA has yet to suffer any consequences for ordering, justifying or participating in the NSA’s domestic spying operation.
It is the opinion of GAP that recent events suggest the full might of the Department of Justice will be leveled at Snowden, including an indictment under the Espionage Act, while those who stretched their interpretation of the Patriot Act to encompass the private lives of millions of Americans will simply continue working.
VIII. In the surveillance state, the enemy is the whistleblower.
If every action has an opposite and equal reaction, the whistleblower is that reaction within the surveillance state. Dragnet electronic surveillance is a high-tech revival of tactics used to attack the civil rights movement and political enemies of the Nixon administration. Whistleblowers famously alerted the public to past government overreach, while helping to defend both national security and civil liberties.
In contrast, secrecy, retaliation and intimidation undermine our Constitutional rights and weaken our democratic processes more swiftly, more surely, and more corrosively than the acts of terror from which they purport to protect us.
“How the NSA’s Surveillance Procedures Threaten Americans’ Privacy,” Statement by American Civil Liberties Union, New York (June 21, 2013)
Source: American Civil Liberties Union
Newly released documents confirm what critics have long suspected—that the National Security Agency, a component of the Defense Department, is engaged in unconstitutional surveillance of Americans’ communications, including their telephone calls and emails. The documents show that the NSA is conducting sweeping surveillance of Americans’ international communications, that it is acquiring many purely domestic communications as well, and that the rules that supposedly protect Americans’ privacy are weak and riddled with exceptions.
The FISA Amendment Act signed into law by President Bush in 2008, expanded the government’s authority to monitor Americans’ electronic communications. Critics of the law feared the NSA would use the law to conduct broad surveillance of Americans’ international communications and, in the process, capture an unknown quantity of purely domestic communications. Government officials contended that the law authorized surveillance of foreign nationals outside the United States—not of Americans—and that it included robust safeguards to protect Americans’ privacy. Last year, in a successful effort to derail a constitutional challenge to the law, the Obama administration made these same claims to the U.S. Supreme Court.
Now the Guardian has published two previously secret documents that show how the FISA Amendments Act is being implemented. One document sets out the government’s “targeting procedures”—the procedures it uses to determine whether it has the authority to acquire communications in the first place. The other sets out the government’s “minimization procedures”—the procedures that govern the retention, analysis and dissemination of the communications it acquires. Both documents—the “Procedures”—have apparently been endorsed by the Foreign Intelligence Surveillance Court, which oversees government surveillance in some national security cases.
The Procedures are complex, but at least some of their flaws are clear.
1. The Procedures permit the NSA to monitor Americans’ international communications in the course of surveillance targeted at foreigners abroad.
The NSA “is not listening to Americans’ phone calls or monitoring their emails,” the Chairman of the House Intelligence Committee recently said, and many other government officials, including the president himself, have made similar assurances. But these statements are not true. While the FISA Amendments Act authorizes the government to target foreigners abroad, not Americans, it permits the government to collect Americans’ communications with those foreign targets. Indeed, in advocating for the Act, government officials made clear that these “one-end-domestic” communications were the ones of most interest to them. The Procedures contemplate not only that the NSA will acquire Americans’ international communications but that it will retain them and possibly disseminate them to other U.S. government agencies and foreign governments. Americans’ communications that contain “foreign intelligence information” or evidence of a crime can be retained forever, and even communications that don’t can be retained for as long as five years. Despite government officials’ claims to the contrary, the NSA is building a growing database of Americans’ international telephone calls and emails.
2. The Procedures allow the surveillance of Americans by failing to ensure that the NSA’s surveillance targets are in fact foreigners outside the United States.
The Act is predicated on the theory that foreigners abroad have no right to privacy—or, at any rate, no right that the United States should respect. Because they have no right to privacy, the U.S. government sees no bar to the collection of their communications, including their communications with Americans. But even if one accepts the government’s premise, the Procedures fail to ensure that the NSA’s surveillance targets are in fact foreigners outside the United States. This is because the Procedures permit the NSA to presume that prospective surveillance targets are foreigners outside the United States absent specific information to the contrary—and to presume therefore that they are fair game for warrantless surveillance.
3. The Procedures permit the government to conduct surveillance that has no real connection to the government’s foreign intelligence interests.
One of the fundamental problems with the Act is that it permits the government to conduct surveillance without probable cause or individualized suspicion. It permits the government to monitor people who aren’t even thought to be doing anything wrong, and to do so without particularized warrants or meaningful review by impartial judges. Government officials have placed heavy emphasis on the fact that the Act allows the government to conduct surveillance only if one of its purposes is to gather “foreign intelligence information.” That term, though, is defined very broadly to include not only information about terrorism but also information about intelligence activities, the national defense and even “the foreign affairs of the United States.” The Procedures weaken the limitation further. Among the things the NSA examines to determine whether a particular email address or phone number will be used to exchange foreign intelligence information is whether it has been used in the past to communicate with foreigners. Another is whether it is listed in a foreigner’s address book. In other words, the NSA seems to equate a propensity to communicate with foreigners with a propensity to communicate foreign intelligence information. The effect is to bring virtually every international communication within the reach of the NSA’s surveillance.
4. The Procedures permit the NSA to collect international communications, including Americans’ international communications, in bulk.
On its face, the Act permits the NSA to conduct dragnet surveillance, not just surveillance of specific individuals. Officials who advocated for the Act made clear that this was one of its principal purposes, and unsurprisingly, the Procedures give effect to that design. While they require the government to identify a “target” outside the country, once the target has been identified the Procedures permit the NSA to sweep up the communications of any foreigner who may be communicating “about” the target. The Procedures contemplate that the NSA will do this by “employ[ing] an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas,” by “target[ing] Internet links that terminate in a foreign country,” or by identifying “the country code of the telephone number.” However the NSA does it, the result is the same: millions of communications may be swept up, Americans’ international communications among them.
5. The Procedures allow the NSA to retain even purely domestic communications.
Given the permissive standards the NSA uses to determine whether prospective surveillance targets are foreigners abroad, errors are inevitable. Some of the communications the NSA collects under the Act, then, will be purely domestic. (Notably, a 2009 New York Times article discusses an episode in which the NSA used the Act to engage in “significant and systemic” over collection of such domestic communications.) The Act should require the NSA to purge these communications from its databases, but it does not. The Procedures allow the government to keep and analyze even purely domestic communications if they contain significant foreign intelligence information, evidence of a crime or encrypted information. Again, foreign intelligence information is defined exceedingly broadly. The result is that the NSA is steadily building a database of Americans’ purely domestic calls and emails.
6. The Procedures allow the government to collect and retain communications protected by the attorney–client privilege.
The Procedures expressly contemplate that the NSA will collect attorney–client communications. In general, these communications receive no special protection—they can be acquired, retained, and disseminated like any other. Thus, if the NSA acquires the communications of lawyers representing individuals who have been charged before the military commissions at Guantanamo, nothing in the Procedures would seem to prohibit the NSA from sharing the communications with military prosecutors. The Procedures include a more restrictive rule for communications between attorneys and their clients who have been criminally indicted in the United States—the NSA may not share these communications with prosecutors. Even those communications, however, may be retained to the extent that they include foreign intelligence information.
7. The Procedures contemplate that the NSA will maintain “knowledge databases” containing sensitive information about Americans.
To determine whether a target is a foreigner abroad, the Procedures contemplate that the NSA will consult various NSA databases containing information collected by it and other agencies through signals intelligence, human intelligence, law enforcement and other means. These databases—referred to as “NSA content repositories” and “knowledge databases”—apparently house internet data, including metadata that reveals online activities, as well as telephone numbers and email addresses that the agency has reason to believe are being used by U.S. persons. The Procedures’ reference to “Home Location Registers,” which receive updates whenever a phone “moves into a new service area,” suggests that the NSA also collects some form of location information about millions of Americans’ cellphones. The Procedures do not say what limits apply to these databases or what safeguards, if any, are in place to protect Americans’ constitutional rights.
8. The Procedures allow the NSA to retain encrypted communications indefinitely.
The Procedures permit the NSA to retain, forever, all communications—even purely domestic ones—that are encrypted. The use of encryption to protect data is a routine and sometimes legally required practice by financial organizations, health care providers, and real-time communications services (like Skype and Apple’s FaceTime). Accordingly, the Procedures permit the NSA to retain huge volumes of Americans’ most sensitive information.
Press Release, Office of United Nations Commissioner for Human Rights Navi Pillay, on Edward Snowden and Surveillance, Geneva (July 12, 2013)
Source: Office of the United Nations High Commissioner for Human Rights
GENEVA (12 July 2013) – The situation of Edward Snowden and alleged large-scale violations of the right of privacy by surveillance programs raise a number of important international human rights issues which need to be addressed, the UN High Commissioner for Human Rights, Navi Pillay, said on Friday.
“While concerns about national security and criminal activity may justify the exceptional and narrowly tailored use of surveillance programs, surveillance without adequate safeguards to protect the right to privacy actually risks impacting negatively on the enjoyment of human rights and fundamental freedoms,” Pillay said.
“Both Article 12 of the Universal Declaration of Human rights and Article 17 of the International Covenant on Civil and Political rights state that no one shall be subjected to arbitrary interference with one’s privacy, family, home or correspondence, and that everyone has the right to the protection of the law against such interference or attacks,” said the High Commissioner.
“People need to be confident that their private communications are not being unduly scrutinized by the State,” the High Commissioner noted.
“The right to privacy, the right to access to information and freedom of expression are closely linked. The public has the democratic right to take part in public affairs and this right cannot be effectively exercised by solely relying on authorized information,” Pillay said.
“Snowden’s case has shown the need to protect persons disclosing information on matters that have implications for human rights, as well as the importance of ensuring respect for the right to privacy,” Pillay said.
“National legal systems must ensure that there are adequate avenues for individuals disclosing violations of human rights to express their concern without fear of reprisals,” she added.
As stated by the former UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin, “reliable factual information about serious human rights violations by an intelligence agency is most likely to come from within the agency itself. In these cases, the public interest in disclosure outweighs the public interest in non-disclosure. Such whistleblowers should firstly be protected from legal reprisals and disciplinary action when disclosing unauthorized information.”
The UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms contains important provisions for the protection of the right to defend human rights. Those who reveal information that they reasonably believe to indicate the commission of human rights violations are entitled to such protection.
“Without prejudging the validity of any asylum claim by Snowden, I appeal to all States to respect the internationally guaranteed right to seek asylum, in accordance with Article 14 of the Universal Declaration and Article 1 of the UN Convention relating to the status of Refugees, and to make any such determination in accordance with their international legal obligations,” Pillay said.
Testimony of Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union Foundation, and Laura W. Murphy, Director, Washington Legislative Office American Civil Liberties Union, before the House Committee on the Judiciary Oversight Hearing on the Administration’s Use of FISA Authorities (July 17, 2013)
Source: American Civil Liberties Union
On behalf of the American Civil Liberties Union (ACLU), its hundreds of thousands of members, and its fifty-three affiliates nationwide, thank you for inviting the ACLU to testify before the Committee.
Over the last six weeks it has become clear that the National Security Agency (NSA) is engaged in far-reaching, intrusive, and unlawful surveillance of Americans’ telephone calls and electronic communications. That the NSA is engaged in this surveillance is the result of many factors. The Foreign Intelligence Surveillance Act (FISA) affords the government sweeping power to monitor the communications of innocent people. Excessive secrecy has made congressional oversight difficult and public oversight impossible. Intelligence officials have repeatedly misled the public, Congress, and the courts about the nature and scope of the government’s surveillance activities. Structural features of the Foreign Intelligence Surveillance Court (FISC) have prevented that court from serving as an effective guardian of individual rights. And the ordinary federal courts have improperly used procedural doctrines to place the NSA’s activities beyond the reach of the Constitution.
To say that the NSA’s activities present a grave danger to American democracy is no overstatement. Thirty-seven years ago, after conducting a comprehensive investigation into the intelligence abuses of the previous decades, the Church Committee warned that inadequate regulations on government surveillance “threaten[ed] to undermine our democratic society and fundamentally alter its nature.” This warning should have even more resonance today, because in recent decades the NSA’s resources have grown, statutory and constitutional limitations have been steadily eroded, and the technology of surveillance has become exponentially more powerful.
Because the problem Congress confronts today has many roots, there is no single solution to it. It is crucial, however, that Congress take certain steps immediately. It should amend relevant provisions of FISA to prohibit suspicionless, “dragnet” monitoring or tracking of Americans’ communications. It should require the publication of past and future FISC opinions insofar as they evaluate the meaning, scope, or constitutionality of the foreign-intelligence laws. It should ensure that the public has access to basic information, including statistical information, about the government’s use of new surveillance authorities. It should also hold additional hearings to consider further amendments to FISA—including amendments to make FISC proceedings more transparent.
I. Metadata surveillance under Section 215 of the Patriot Act
On June 5, 2013, the Guardian disclosed a previously secret FISC order that compels a Verizon subsidiary, Verizon Business Network Services (VBNS), to supply the government with records relating to every phone call placed on its network between April 25, 2013 and July 19, 2013.¹ The order directs VBNS to produce to the NSA “on an ongoing daily basis . . . all call detail records or ‘telephony metadata’” relating its customers’ calls, including those “wholly within the United States.”² As many have noted, the order is breathtaking in its scope. It is as if the government had seized every American’s address book—with annotations detailing which contacts she spoke to, when she spoke with them, for how long, and (possibly) from which locations.
News reports since the disclosure of the VBNS order indicate that the mass acquisition of Americans’ call details extends beyond customers of VBNS, encompassing subscribers of the country’s three largest phone companies: Verizon, AT&T, and Sprint.³ Members of the congressional intelligence committees have confirmed that the order issued to VBNS is part of a broader program under which the government has been collecting the telephone records of essentially all Americans for at least seven years.4
a. The metadata program is not authorized by statute
The metadata program has been implemented under Section 215 of the Patriot Act—sometimes referred to as FISA’s “business records” provision—but this provision does not permit the government to track all Americans’ phone calls, let alone over a period of seven years.
As originally enacted in 1998, FISA’s business records provision permitted the FBI to compel the production of certain business records in foreign intelligence or international terrorism investigations by making an application to the FISC. See 50 U.S.C. §§ 1861-62 (2000 ed.). Only four types of records could be sought under the statute: records from common carriers, public accommodation facilities, storage facilities, and vehicle rental facilities. 50 U.S.C. § 1862 (2000 ed.). Moreover, the FISC could issue an order only if the application contained “specific and articulable facts giving reason to believe that the person to whom the records pertain[ed] [was] a foreign power or an agent of a foreign power.”Id.
The business records power was considerably expanded by the Patriot Act.5 Section 215 of that Act, now codified in 50 U.S.C. § 1861, permitted the FBI to make an application to the FISC for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities… 50 U.S.C. § 1861(a)(1) (emphasis added).
No longer limited to four discrete categories of business records, the new law authorized the FBI to seek the production of “any tangible things.” Id. It also authorized the FBI to obtain orders without demonstrating reason to believe that the target was a foreign power or agent of a foreign power. Instead, it permitted the government to obtain orders where tangible things were “sought for” an authorized investigation. P.L. 107-56, § 215. This language was further amended by the USA PATRIOT Improvement and Reauthorization Act of 2005, P.L. 109-177, § 106(b). Under the current version of the business records provision, the FBI must provide “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant” to a foreign intelligence, international terrorism, or espionage investigation. 50 U.S.C. § 1861(b)(2)(A) (emphasis added).6
While the Patriot Act considerably expanded the government’s surveillance authority, Section 215 does not authorize the metadata program. First, whatever “relevance” might allow, it does not permit the government to cast a seven-year dragnet over the records of every phone call made or received by any American. Indeed, to say that Section 215 authorizes this surveillance is to deprive the word “relevance” of any meaning. The government’s theory appears to be that some of the information swept up in the dragnet might become relevant to “an authorized investigation” at some point in the future. The statute, however, does not permit the government to collect information on this basis. Cf.Jim Sensenbrenner, “This Abuse of the Patriot Act Must End,” Guardian, June 9, 2013, http://bit.ly/18iDA3x (“[B]ased on the scope of the released order, both the administration and the FISA court are relying on an unbounded interpretation of the act that Congress never intended.”). The statute requires the government to show a connection between the records it seeks and some specific, existing investigation.
Indeed, the changes that Congress made to the statute in 2006 were meant to ensure that the government did not exploit ambiguity in the statute’s language to justify the collection of sensitive information not actually connected to some authorized investigation. As Senator Jon Kyl put it in 2006, “We all know the term ‘relevance.’ It is a term that every court uses. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation.”7
As Congress recognized in 2006, relevance is a familiar standard in our legal system. It has never been afforded the limitless scope that the executive branch is affording it now. Indeed, in the past, courts have carefully policed the outer perimeter of “relevance” to ensure that demands for information are not unbounded fishing expeditions. See, e.g., In re Horowitz, 482 F.2d 72, 79 (2d Cir. 1973) (“What is more troubling is the matter of relevance. The [grand jury] subpoena requires production of all documents contained in the files, without any attempt to define classes of potentially relevant documents or any limitations as to subject matter or time period.”).8 The information collected by the government under the metadata program goes far beyond anything a court has ever allowed under the rubric of “relevance.”9
b. The metadata program is unconstitutional
President Obama and intelligence officials have been at pains to emphasize that the government is collecting metadata, not content. The suggestion that metadata is somehow beyond the reach of the Constitution, however, is not correct. For Fourth Amendment purposes, the crucial question is not whether the government is collecting content or metadata but whether it is invading reasonable expectations of privacy. In the case of bulk collection of Americans’ phone records, it clearly is.
The Supreme Court’s recent decision in United States v. Jones, 132 S. Ct. 945 (2012), is instructive. In that case, a unanimous Court held that long-term surveillance of an individual’s location constituted a search under the Fourth Amendment. The Justices reached this conclusion for different reasons, but at least five Justices were of the view that the surveillance infringed on a reasonable expectation of privacy. Justice Sotomayor observed that tracking an individual’s movements over an extended period allows the government to generate a “precise, comprehensive record” that reflects “a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. (Sotomayor, J., concurring).
The same can be said of the tracking now taking place under Section 215. Call records can reveal personal relationships, medical issues, and political and religious affiliations. Internet metadata may be even more revealing, allowing the government to learn which websites a person visits, precisely which articles she reads, whom she corresponds with, and whom those people correspond with.
The long-term surveillance of metadata constitutes a search for the same reasons that the long-term surveillance of location was found to constitute a search in Jones. In fact, the surveillance held unconstitutional in Jones was narrower and shallower than the surveillance now taking place under Section 215. The location tracking in Jones was meant to further a specific criminal investigation into a specific crime, and the government collected information about one person’s location over a period of less than a month. What the government has implemented under Section 215 is an indiscriminate program that has already swept up the communications of millions of people over a period of seven years.
Some have defended the metadata program by reference to the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which upheld the installation of a pen register in a criminal investigation. The pen register in Smith, however, was very primitive—it tracked the numbers being dialed, but it didn’t indicate which calls were completed, let alone the duration of the calls. Moreover, the surveillance was directed at a single criminal suspect over a period of less than two days. The police were not casting a net over the whole country.
Another argument that has been offered in defense of the metadata program is that, though the NSA collects an immense amount of information, it examines only a tiny fraction of it. But the Fourth Amendment is triggered by the collection of information, not simply by the querying of it. The NSA cannot insulate this program from Fourth Amendment scrutiny simply by promising that Americans’ private information will be safe in its hands. The Fourth Amendment exists to prevent the government from acquiring Americans’ private papers and communications in the first place.
Because the metadata program vacuums up sensitive information about associational and expressive activity, it is also unconstitutional under the First Amendment. The Supreme Court has recognized that the government’s surveillance and investigatory activities have an acute potential to stifle association and expression protected by the First Amendment. See, e.g., United States v. U.S. District Court, 407 U.S. 297 (1972). As a result of this danger, courts have subjected investigatory practices to “exacting scrutiny” where they substantially burden First Amendment rights. See, e.g., Clark v. Library of Congress, 750 F.2d 89, 94 (D.C. Cir. 1984) (FBI field investigation); In re Grand Jury Proceedings, 776 F.2d 1099, 1102-03 (2d Cir. 1985) (grand jury subpoena). The metadata program cannot survive this scrutiny. This is particularly so because all available evidence suggests that the program is far broader than necessary to achieve the government’s legitimate goals. See, e.g., Press Release, “Wyden, Udall Question the Value and Efficacy of Phone Records Collection in Stopping Attacks,” June 7, 2013, http://1.usa.gov/19Q1Ng1 (“As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does.”).
c. Congress should amend Section 215 to prohibit suspicionless, dragnet collection of “tangible things”
As explained above, the metadata program is neither authorized by statute nor constitutional. As the government and FISC have apparently found to the contrary, however, the best way for Congress to protect Americans’ privacy is to narrow the statute’s scope. The ACLU urges Congress to amend Section 215 to provide that the government may compel the production of records under the provision only where there is a close connection between the records sought and a foreign power or agent of a foreign power. Several bipartisan bills now in the House and Senate should be considered by this Committee and Congress at large. The LIBERT-E Act, H.R. 2399, 113th Cong. (2013), sponsored by Ranking Member Conyers, Rep. Justin Amash, and forty others, would tighten the relevance requirement, mandating that the government supply “specific and articulable facts showing that there are reasonable grounds to believe that the tangible things sought are relevant and material,” and that the records sought “pertain only to an individual that is the subject of such investigation.” A bill sponsored by Senators Udall and Wyden would similarly tighten the required connection between the government’s demand for records and a foreign power or agent of a foreign power. Congress could also consider simply restoring some of the language that was deleted by the Patriot Act—in particular, the language that required the government to show “specific and articulable facts giving reason to believe that the person to whom the records pertain[ed] [was] a foreign power or an agent of a foreign power.”
II. Electronic surveillance under Section 702 of FISA
The metadata program is only one part of the NSA’s domestic surveillance activities. Recent disclosures show that the NSA is also engaged in large-scale monitoring of Americans’ electronic communications under Section 702 of FISA, which codifies the FISA Amendments Act of 2008.10 Under this program, labeled “PRISM” in NSA documents, the government collects emails, audio and video chats, photographs, and other internet traffic from nine major service providers—Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple.11 The Director of National Intelligence has acknowledged the existence of the PRISM program but stated that it involves surveillance of foreigners outside the United States.12 This is misleading. The PRISM program involves the collection of Americans’ communications, both international and domestic, and for reasons explained below, the program is unconstitutional.
a. Section 702 is unconstitutional
President Bush signed the FISA Amendments Act into law on July 10, 2008.13 While leaving FISA in place for purely domestic communications, the FISA Amendments Act revolutionized the FISA regime by permitting the mass acquisition, without individualized judicial oversight or supervision, of Americans’ international communications. Under the FISA Amendments Act, the Attorney General and Director of National Intelligence (“DNI”) can “authorize jointly, for a period of up to 1 year . . . the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. 1881a(a). The government is prohibited from “intentionally target[ing] any person known at the time of the acquisition to be located in the United States,” Id.§ 1881a(b)(1), but an acquisition authorized under the FISA Amendments Act may nonetheless sweep up the international communications of U.S. citizens and residents.
Before authorizing surveillance under Section 702—or, in some circumstances, within seven days of authorizing such surveillance—the Attorney General and the DNI must submit to the FISA Court an application for an order (hereinafter, a “mass acquisition order”). Id.§ 1881a(a), (c)(2). A mass acquisition order is a kind of blank check, which once obtained permits—without further judicial authorization—whatever surveillance the government may choose to engage in, within broadly drawn parameters, for a period of up to one year.
To obtain a mass acquisition order, the Attorney General and DNI must provide to the FISA Court “a written certification and any supporting affidavit” attesting that the FISA Court has approved, or that the government has submitted to the FISA Court for approval, “targeting procedures” reasonably designed to ensure that the acquisition is “limited to targeting persons reasonably believed to be located outside the United States,” and to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” Id.§ 1881a(g)(2)(A)(i).
The certification and supporting affidavit must also attest that the FISA Court has approved, or that the government has submitted to the FISA Court for approval, “minimization procedures” that meet the requirements of 50 U.S.C. § 1801(h) or § 1821(4).
Finally, the certification and supporting affidavit must attest that the Attorney General has adopted “guidelines” to ensure compliance with the limitations set out in § 1881a(b); that the targeting procedures, minimization procedures, and guidelines are consistent with the Fourth Amendment; and that “a significant purpose of the acquisition is to obtain foreign intelligence information.” Id.§ 1881a(g)(2)(A)(iii)–(vii).
Importantly, Section 702 does not require the government to demonstrate to the FISA Court that its surveillance targets are foreign agents, engaged in criminal activity, or connected even remotely with terrorism. Indeed, the statute does not require the government to identify its surveillance targets at all. Moreover, the statute expressly provides that the government’s certification is not required to identify the facilities, telephone lines, email addresses, places, premises, or property at which its surveillance will be directed. Id. § 1881a(g)(4).
Nor does Section 702 place meaningful limits on the government’s retention, analysis, and dissemination of information that relates to U.S. citizens and residents. The Act requires the government to adopt “minimization procedures,” Id.§ 1881a, that are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons,” Id.§§ 1801(h)(1), 1821(4)(A). The Act does not, however, prescribe specific minimization procedures. Moreover, the FISA Amendments Act specifically allows the government to retain and disseminate information—including information relating to U.S. citizens and residents—if the government concludes that it is “foreign intelligence information.” Id.§ 1881a(e) (referring to Id.§§ 1801(h)(1), 1821(4)(A)). The phrase “foreign intelligence information” is defined broadly to include, among other things, all information concerning terrorism, national security, and foreign affairs. Id.§ 1801(e).
As the FISA Court has itself acknowledged, its role in authorizing and supervising surveillance under the FISA Amendments Act is “narrowly circumscribed.”14 The judiciary’s traditional role under the Fourth Amendment is to serve as a gatekeeper for particular acts of surveillance, but its role under the FISA Amendments Act is to issue advisory opinions blessing in advance broad parameters and targeting procedures, under which the government is then free to conduct surveillance for up to one year. Under Section 702, the FISA Court does not consider individualized and particularized surveillance applications, does not make individualized probable cause determinations, and does not closely supervise the implementation of the government’s targeting or minimization procedures. In short, the role that the FISA Court plays under the FISA Amendments Act bears no resemblance to the role that it has traditionally played under FISA.
The ACLU has long expressed deep concerns about the lawfulness of the FISA Amendments Act and surveillance under Section 702.15 The statute’s defects include:
Section 702 allows the government to collect Americans’ international communications without requiring it to specify the people, facilities, places, premises, or property to be monitored.
Until Congress enacted the FISA Amendments Act, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized and particularized order from the FISA court. In order to obtain a court order, the government was required to show that there was probable cause to believe that its surveillance target was an agent of a foreign government or terrorist group. It was also generally required to identify the facilities to be monitored. The FISA Amendments Act allows the government to conduct electronic surveillance without indicating to the FISA Court whom it intends to target or which facilities it intends to monitor, and without making any showing to the court—or even making an internal executive determination—that the target is a foreign agent or engaged in terrorism. The target could be a human rights activist, a media organization, a geographic region, or even a country. The government must assure the FISA Court that the targets are non-U.S. persons overseas, but in allowing the executive to target such persons overseas, Section 702 allows it to monitor communications between those targets and U.S. persons inside the United States. Moreover, because the FISA Amendments Act does not require the government to identify the specific targets and facilities to be surveilled, it permits the acquisition of these communications en masse. A single acquisition order may be used to justify the surveillance of communications implicating thousands or even millions of U.S. citizens and residents.
Section 702 allows the government to conduct intrusive surveillance without meaningful judicial oversight.
Under Section 702, the government is authorized to conduct intrusive surveillance without meaningful judicial oversight. The FISA Court does not review individualized surveillance applications. It does not consider whether the government’s surveillance is directed at agents of foreign powers or terrorist groups. It does not have the right to ask the government why it is initiating any particular surveillance program. The FISA Court’s role is limited to reviewing the government’s “targeting” and “minimization” procedures. And even with respect to the procedures, the FISA court’s role is to review the procedures at the outset of any new surveillance program; it does not have the authority to supervise the implementation of those procedures over time.
Section 702 places no meaningful limits on the government’s retention and dissemination of information relating to U.S. citizens and residents.
As a result of the FISA Amendments Act, thousands or even millions of U.S. citizens and residents will find their international telephone and email communications swept up in surveillance that is “targeted” at people abroad. Yet the law fails to place any meaningful limitations on the government’s retention and dissemination of information that relates to U.S. persons. The law requires the government to adopt “minimization” procedures—procedures that are “reasonably designed . . . to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons.” However, these minimization procedures must accommodate the government’s need “to obtain, produce, and disseminate foreign intelligence information.” In other words, the government may retain or disseminate information about U.S. citizens and residents so long as the information is “foreign intelligence information.” Because “foreign intelligence information” is defined broadly (as discussed below), this is an exception that swallows the rule.
Section 702 does not limit government surveillance to communications relating to terrorism.
The Act allows the government to conduct dragnet surveillance if a significant purpose of the surveillance is to gather “foreign intelligence information.” There are multiple problems with this. First, under the new law the “foreign intelligence” requirement applies to entire surveillance programs, not to individual intercepts. The result is that if a significant purpose of any particular government dragnet is to gather foreign intelligence information, the government can use that dragnet to collect all kinds of communications—not only those that relate to foreign intelligence. Second, the phrase “foreign intelligence information” has always been defined extremely broadly to include not only information about terrorism but also information about intelligence activities, the national defense, and even the “foreign affairs of the United States.” Journalists, human rights researchers, academics, and attorneys routinely exchange information by telephone and email that relates to the foreign affairs of the U.S.
b. The NSA’s “targeting” and “minimization” procedures do not mitigate the statute’s constitutional deficiencies.
Since the FISA Amendments Act was enacted in 2008, the government’s principal defense of the law has been that “targeting” and “minimization” procedures supply sufficient protection for Americans’ privacy. Because the procedures were secret, the government’s assertion was impossible to evaluate. Now that the procedures have been published, however,16 it is plain that the assertion is false. Indeed, the procedures confirm what critics have long suspected—that the NSA is engaged in unconstitutional surveillance of Americans’ communications, including their telephone calls and emails. The documents show that the NSA is conducting sweeping surveillance of Americans’ international communications, that it is acquiring many purely domestic communications as well, and that the rules that supposedly protect Americans’ privacy are weak and riddled with exceptions.
The NSA’s procedures permit it to monitor Americans’ international communications in the course of surveillance targeted at foreigners abroad.
While the FISA Amendments Act authorizes the government to target foreigners abroad, not Americans, it permits the government to collect Americans’ communications with those foreign targets. The recently disclosed procedures contemplate not only that the NSA will acquire Americans’ international communications but that it will retain them and possibly disseminate them to other U.S. government agencies and foreign governments. Americans’ communications that contain “foreign intelligence information” or evidence of a crime can be retained forever, and even communications that don’t can be retained for as long as five years. Despite government officials’ claims to the contrary, the NSA is building a growing database of Americans’ international telephone calls and emails.
The NSA’s procedures allow the surveillance of Americans by failing to ensure that its surveillance targets are in fact foreigners outside the United States.
The FISA Amendments Act is predicated on the theory that foreigners abroad have no right to privacy—or, at any rate, no right that the United States should respect. Because they have no right to privacy, the NSA sees no bar to the collection of their communications, including their communications with Americans. But even if one accepts this premise, the NSA’s procedures fail to ensure that its surveillance targets are in fact foreigners outside the United States. This is because the procedures permit the NSA to presume that prospective surveillance targets are foreigners outside the United States absent specific information to the contrary—and to presume therefore that they are fair game for warrantless surveillance.
The NSA’s procedures permit the government to conduct surveillance that has no real connection to the government’s foreign intelligence interests.
One of the fundamental problems with Section 702 is that it permits the government to conduct surveillance without probable cause or individualized suspicion. It permits the government to monitor people who are not even thought to be doing anything wrong, and to do so without particularized warrants or meaningful review by impartial judges. Government officials have placed heavy emphasis on the fact that the FISA Amendments Act allows the government to conduct surveillance only if one of its purposes is to gather “foreign intelligence information.” As noted above, however, that term is defined very broadly to include not only information about terrorism but also information about intelligence activities, the national defense, and even “the foreign affairs of the United States.” The NSA’s procedures weaken the limitation further. Among the things the NSA examines to determine whether a particular email address or phone number will be used to exchange foreign intelligence information is whether it has been used in the past to communicate with foreigners. Another is whether it is listed in a foreigner’s address book. In other words, the NSA appears to equate a propensity to communicate with foreigners with a propensity to communicate foreign intelligence information. The effect is to bring virtually every international communication within the reach of the NSA’s surveillance.
The NSA’s procedures permit the NSA to collect international communications, including Americans’ international communications, in bulk.
On its face, Section 702 permits the NSA to conduct dragnet surveillance, not just surveillance of specific individuals. Officials who advocated for the FISA Amendments Act made clear that this was one of its principal purposes, and unsurprisingly, the procedures give effect to that design. While they require the government to identify a “target” outside the country, once the target has been identified the procedures permit the NSA to sweep up the communications of any foreigner who may be communicating “about” the target. The Procedures contemplate that the NSA will do this by “employ[ing] an Internet Protocol filter to ensure that the person from whom it seeks to obtain foreign intelligence information is located overseas,” by “target[ing] Internet links that terminate in a foreign country,” or by identifying “the country code of the telephone number.” However the NSA does it, the result is the same: millions of communications may be swept up, Americans’ international communications among them.
The NSA’s procedures allow the NSA to retain even purely domestic communications.
Given the permissive standards the NSA uses to determine whether prospective surveillance targets are foreigners abroad, errors are inevitable. Some of the communications the NSA collects under the Act, then, will be purely domestic.17 The Act should require the NSA to purge these communications from its databases, but it does not. The procedures allow the government to keep and analyze even purely domestic communications if they contain significant foreign intelligence information, evidence of a crime, or encrypted information. Again, foreign intelligence information is defined exceedingly broadly.
The NSA’s procedures allow the government to collect and retain communications protected by the attorney-client privilege.
The procedures expressly contemplate that the NSA will collect attorney-client communications. In general, these communications receive no special protection—they can be acquired, retained, and disseminated like any other. Thus, if the NSA acquires the communications of lawyers representing individuals who have been charged before the military commissions at Guantanamo, nothing in the procedures would seem to prohibit the NSA from sharing the communications with military prosecutors. The procedures include a more restrictive rule for communications between attorneys and their clients who have been criminally indicted in the United States—the NSA may not share these communications with prosecutors. Even those communications, however, may be retained to the extent that they include foreign intelligence information.
c. Congress should amend Section 702 to prohibit suspicionless, dragnet collection of Americans’ communications.
For the reasons discussed above, the ACLU believes that the FISA Amendments Act is unconstitutional on its face. There are many ways, however, that Congress could provide meaningful protection for privacy while preserving the statute’s broad outline. One bill introduced by Senator Wyden during the reauthorization debate last fall would have prohibited the government from searching through information collected under the FISA Amendments Act for the communications of specific, known U.S. persons. Bills submitted during the debate leading up to the passage of the FISA Amendments Act in 2008 would have banned dragnet collection in the first instance or required the government to return to the FISC before searching communications obtained through the FISA Amendments Act for information about U.S. persons. Congress should examine these proposals again and make amendments to the Act that would provide greater protection for individual privacy and mitigate the chilling effect on rights protected by the First Amendment.
III. Excessive secrecy surrounds the government’s use of FISA authorities.
Amendments to FISA since 2001 have substantially expanded the government’s surveillance authorities, but the public lacks crucial information about the way these authorities have been implemented. Rank-and-file members of Congress and the public have learned more about domestic surveillance in the last two months than in the last several decades combined. While the Judiciary and Intelligence Committees have received some information in classified format, only members of the Senate Select Committee on Intelligence, party leadership, and a handful of Judiciary Committee members have staff with clearance high enough to access the information and advise their principals. Although the Inspectors General and others file regular reports with the Committees of jurisdiction, these reports do not include even basic information such how many Americans’ communications are swept up in these programs, or how and when Americans’ information is accessed and used.
Nor does the public have access to the FISC decisions that assess the meaning, scope, and constitutionality of the surveillance laws. Aggregate statistics alone would not allow the public to understand the reach of the government’s surveillance powers; as we have seen with Section 215, one application may encompass millions of individual records. Public access to the FISA Court’s substantive legal reasoning is essential. Without it, some of the government’s most far-reaching policies will lack democratic legitimacy. Instead, the public will be dependent on the discretionary disclosures of executive branch officials—disclosures that have sometimes been self-serving and misleading in the past.18Needless to say, it may be impossible to release FISC opinions without redacting passages concerning the NSA’s sources and methods. The release of redacted opinions, however, would be far better than the release of nothing at all.
Congress should require the release of FISC opinions concerning the scope, meaning, or constitutionality of FISA, including opinions relating to Section 215 and Section 702. Administration officials have said there are over a dozen such opinions, some close to one hundred pages long.19 Executive officials testified before Congress several years ago that declassification review was already underway,20 and President Obama directed the DNI to revisit that process in the last few weeks. If the administration refuses to release these opinions, Congress should consider legislation compelling their release. Possible vehicles include the LIBERT-E Act, cited above, or the Ending Secret Law Act, H.R. 2475, 113th Cong. (2013), a bipartisan bill sponsored by Rep. Adam Schiff, Todd Rokita, and sixteen other members of the House.
Congress should also require the release of information about the type and volume of information that is obtained under dragnet surveillance programs. The leaked Verizon order confirms that the government is using Section 215 to collect telephony metadata about every phone call made by VBNS subscribers in the United States. That the government is using Section 215 for this purpose raises the question of what other “tangible things” the government may be collecting through similar dragnets. For reasons discussed above, the ACLU believes that these dragnets are unauthorized by the statute as well as unconstitutional. Whatever their legality, however, the public has a right to know, at least in general terms, what kinds of information the government is collecting about innocent Americans, and on what scale.
IV. Summary of recommendations
As discussed above, the ACLU urges Congress to:
- Amend Section 215 of the Patriot Act and Section 702 of FISA to prohibit suspicionless, “dragnet” monitoring or tracking of Americans’ communications.
- Require the publication of past and future FISC opinions insofar as they evaluate the meaning, scope, or constitutionality of the foreign-intelligence laws.
- Require the publication of information about the type and volume of information that the government obtains under dragnet surveillance programs.
- Hold additional hearings to consider further amendments to FISA—including amendments to make FISC proceedings more transparent.
Thank you for this opportunity to present the ACLU’s views.
1 See Glenn Greenwald, “NSA Collecting Phone Records of Millions of Verizon Customers Daily”,Guardian, June 5, 2013, http://bit.ly/13jsdlb.
2 Secondary Order, In Re Application of the FBI for an Order Requiring the Production of Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 at 2 (FISA Ct. Apr. 25, 2013), available at http://bit.ly/11FY393.
3 See Siobhan Gorman et al., “U.S. Collects Vast Data Trove,” Wall St. J., June 7, 2013, http://on.wsj.com/11uD0ue (“The arrangement with Verizon, AT&T and Sprint, the country’s three largest phone companies, means that every time the majority of Americans make a call, NSA gets a record of the location, the number called, the time of the call and the length of the conversation, according to people familiar with the matter. . . . AT&T has 107.3 million wireless customers and 31.2 million landline customers. Verizon has 98.9 million wireless customers and 22.2 million landline customers while Sprint has 55 million customers in total.”); Siobhan Gorman & Jennifer Valentino-DeVries, “Government Is Tracking Verizon Customers’ Records,” Wall St. J., June 6, 2013, http://on.wsj.com/13mLm7c.
In the days following the Guardian’s disclosure of the Verizon order, officials revealed other details about the government’s surveillance under Section 215. See James R. Clapper, DNI Statement on Recent Unauthorized Disclosures of Classified Information, Office of the Director of National Intelligence (June 6, 2013), http://1.usa.gov/13jwuFc. The DNI stated, for example, that “the [FISC] only allows the data to be queried when there is a reasonable suspicion, based on specific facts, that the particular basis for the query is associated with a foreign terrorist organization.”
4 Dan Roberts & Spencer Ackerman, “Senator Feinstein: NSA Phone Call Data Collection in Place ‘Since 2006,’” Guardian, June 6, 2013, http://bit.ly/13rfxdu; id. (Senator Saxby Chambliss: “This has been going on for seven years.”).
5 For ease of reference, this testimony uses “business records provision” to refer to the current version of the law as well as to earlier versions, even though the current version of the law allows the FBI to compel the production of much more than business records, as discussed below.
6 Records are presumptively relevant if they pertain to (1) a foreign power or an agent of a foreign power; (2) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or (3) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation. This relaxed standard is a significant departure from the original threshold, which, as noted above, required an individualized inquiry.
7 Jennifer Valentino-Devries & Siobhan Gorman, “Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering,” Wall St. J., July 8, 2013, http://on.wsj.com/13x8QKU.
8 See also Hale v. Henkel, 201 U.S. 43, 76-77 (1906).
9 The metadata program also violates Section 215 because the statute does not authorize the prospective acquisition of business records. The text of the statute contemplates “release” of “tangible things” that can be “fairly identified,” and “allow[s] a reasonable time” for providers to “assemble” those things. 50 U.S.C. § 1861(c)(1)-(2). These terms suggest that Section 215 reaches only business records already in existence.
10 Barton Gellman & Laura Poitras, “U.S., British Intelligence Mining Data From Nine U.S. Internet Companies in Broad Secret Program,” Wash. Post, June 7, 2013, http://wapo.st/1888aNr.
11 While news reports have generally described PRISM as an NSA “program,” the publicly available documents leave open the possibility that PRISM is instead the name of the NSA database in which content collected from these providers is stored.
12 James R. Clapper, DNI Statement on Activities Authorized Under Section 702 of FISA, Office of the Director of National Intelligence (June 6, 2013), http://1.usa.gov/13JJdBE; see also James R. Clapper, DNI Statement on the Collection of Intelligence Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (June 8, 2013), http://1.usa.gov/10YY4tp.
13 A description of electronic surveillance prior to the passage of the FISA Amendments Act, including the warrantless wiretapping program authorized by President Bush beginning in 2001, is available in Mr. Jaffer’s earlier testimony to the Committee. See The FISA Amendments Act of 2008: Hearing Before the Subcomm. on Crime, Terrorism, and Homeland Security, H. Comm. on the Judiciary, 112th Cong. (May 31, 2012) (written testimony of Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union Foundation), available at http://bit.ly/14Q61Bs.
14 In re Proceedings Required by § 702(i) of the FISA Amendments Act of 2008, No. Misc. 08-01, slip op. at 3 (FISA Ct. Aug. 27, 2008) (internal quotation marks omitted) available at http://www.fas.org/irp/agency/doj/fisa/fisc082708.pdf.
15 The ACLU raised many of these defects in a constitutional challenge to the FISA Amendments Act filed just hours after the Act was signed into law in 2008. The case, Amnesty v. Clapper, was filed on behalf of a broad coalition of attorneys and human rights, labor, legal and media organizations whose work requires them to engage in sensitive and sometimes privileged telephone and email communications with individuals located outside the United States. In a 5-4 ruling handed down on February 26, 2013, the Supreme Court held that the ACLU’s plaintiffs did not have standing to challenge the constitutionality of the Act because they could not show, at the outset, that their communications had been monitored by the government. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013). The Court did not reach the merits of plaintiffs’ constitutional challenge.
16 See Glenn Greenwald & James Ball, “The Top Secret Rules that Allow NSA to Use US Data Without a Warrant,” Guardian, June 20, 2013, http://bit.ly/105qb9B.
17 Notably, a 2009 New York Times article discusses an episode in which the NSA used the Act to engage in “significant and systemic” overcollection of such domestic communications. Eric Lichtblau & James Risen, “Officials Say U.S. Wiretaps Exceeded Law,” N.Y. Times, April 15, 2009, http://nyti.ms/16AIq5O.
18 See, e.g., Glenn Kessler, “James Clapper’s ‘Least Untruthful’ Statement to the Senate,” Wash. Post, June 12, 2013, http://wapo.st/170VVSu.
19 See Eric Lichtblau, In Secret, Court Vastly Broadens Powers of N.S.A., N.Y. Times, July 6, 2013, http://nyti.ms/12beiA3.
20 Prehearing Questions for Lisa O. Monaco Upon Her Nomination to be the Assistant Attorney General for National Security, Sen. Select Comm. on Intelligence, 112th Cong., at 12-13, available at http://bit.ly/10V5Ion.
Privacy, Technology, and National Security: An Overview of Intelligence Collection by Robert S. Litt, Office of the Director of National Intelligence General Counsel; Remarks prepared for delivery to the Brookings Institution, Washington, DC (July 19, 2013)
Source: Office of the Director of National Intelligence
I wish that I was here in happier times for the Intelligence Community. The last several weeks have seen a series of reckless disclosures of classified information about intelligence activities. These disclosures threaten to cause long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our Nation. And because the disclosures were made by people who did not fully understand what they were talking about, they were sensationalized and led to mistaken and misleading impressions. I hope to be able to correct some of these misimpressions today.
My speech today is prompted by disclosures about two programs that collect valuable foreign intelligence that has protected our Nation and its allies: the bulk collection of telephony metadata, and the so-called “PRISM” program. Some people claim that these disclosures were a form of “whistleblowing.” But let’s be clear. These programs are not illegal. They are authorized by Congress and are carefully overseen by the Congressional intelligence and judiciary committees. They are conducted with the approval of the Foreign Intelligence Surveillance Court and under its supervision. And they are subject to extensive, court-ordered oversight by the Executive Branch. In short, all three branches of Government knew about these programs, approved them, and helped to ensure that they complied with the law. Only time will tell the full extent of the damage caused by the unlawful disclosures of these lawful programs.
Nevertheless, I fully appreciate that it’s not enough for us simply to assert that our activities are consistent with the letter of the law. Our Government’s activities must always reflect and reinforce our core democratic values. Those of us who work in the intelligence profession share these values, including the importance of privacy. But security and privacy are not zero-sum. We have an obligation to give full meaning to both: to protect security while at the same time protecting privacy and other constitutional rights. But although our values are enduring, the manner in which our activities reflect those values must necessarily adapt to changing societal expectations and norms. Thus, the Intelligence Community continually evaluates and improves the safeguards we have in place to protect privacy, while at the same time ensuring that we can carry out our mission of protecting national security.
So I’d like to do three things today. First, I’d like to discuss very briefly the laws that govern intelligence collection activities. Second, I want to talk about the effect of changing technology, and the corresponding need to adapt how we protect privacy, on those collection activities. And third, I want to bring these two strands together, to talk about how some of these laws play out in practice—how we structure the Intelligence Community’s collection activities under FISA to respond to these changes in a way that remains faithful to our democratic values.
II. Legal Framework
Let me begin by discussing in general terms the legal framework that governs intelligence collection activities. And it is a bedrock concept that those activities are bound by the rule of law. This is a topic that has been well addressed by others, including the general counsels of the CIA and NSA, so I will make this brief. We begin, of course, with the Constitution. Article II makes the President the Commander in Chief and gives him extensive responsibility for the conduct of foreign affairs. The ability to collect foreign intelligence derives from that constitutional source. The First Amendment protects freedom of speech. And the Fourth Amendment prohibits unreasonable searches and seizures.
I want to make a few points about the Fourth Amendment. First, under established Supreme Court rulings a person has no legally recognized expectation of privacy in information that he or she gives to a third party. So obtaining those records from the third party is not a search as to that person. I’ll return to this point in a moment. Second, the Fourth Amendment doesn’t apply to foreigners outside of the United States. Third, the Supreme Court has said that the “reasonableness” of a warrantless search depends on balancing the “intrusion on the individual’s Fourth Amendment interests against” the search’s “promotion of legitimate Governmental interests.”
In addition to the Constitution, a variety of statutes govern our collection activities. First, the National Security Act and a number of laws relating to specific agencies, such as the CIA Act and the NSA Act, limit what agencies can do, so that, for example, the CIA cannot engage in domestic law enforcement. We are also governed by laws such as the Electronic Communications Privacy Act, the Privacy Act and, in particular, the Foreign Intelligence Surveillance Act, or FISA. FISA was passed by Congress in 1978 and significantly amended in 2001 and 2008. It regulates electronic surveillance and certain other activities carried out for foreign intelligence purposes. I’ll have much more to say about FISA later.
A final important source of legal restrictions is Executive Order 12333. This order provides additional limits on what intelligence agencies can do, defining each agency’s authorities and responsibilities. In particular, Section 2.3 of EO 12333 provides that elements of the Intelligence Community “are authorized to collect, retain, or disseminate information concerning United States persons only in accordance with procedures…approved by the Attorney General…after consultation with” the Director of National Intelligence. These procedures must be consistent with the agencies’ authorities. They must also establish strict limits on collecting, retaining or disseminating information about U.S. persons, unless that information is actually of foreign intelligence value, or in certain other limited circumstances spelled out in the order, such as to protect against a threat to life. These so-called “U.S. person rules” are basic to the operation of the Intelligence Community. They are among the first things that our employees are trained in, and they are at the core of our institutional culture.
It’s not surprising that our legal regime provides special rules for activities directed at U.S. persons. So far as I know, every nation recognizes legal distinctions between citizens and non-citizens. But as I hope to make clear, our intelligence collection procedures also provide protection for the privacy rights of non-citizens.
III. Impact of Changing Societal Norms
Let me turn now to the impact of changing technology on privacy. Prior to the end of the nineteenth century there was little discussion about a “right to privacy.” In the absence of mass media, photography and other technologies of the industrial age, the most serious invasions of privacy were the result of gossip or Peeping Toms. Indeed, in the 1890 article that first articulated the idea of a legal right to privacy, Louis Brandeis and Samuel Warren explicitly grounded that idea on changing technologies:
Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual what Judge Cooley calls the right “to be let alone.” Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that “what is whispered in the closet shall be proclaimed from the house-top.”
Today, as a result of the way digital technology has developed, each of us shares massive amounts of information about ourselves with third parties. Sometimes this is obvious, as when we post pictures on social media or transmit our credit card numbers to buy products online. Other times it is less obvious, as when telephone companies store records listing every call we make. All in all, there’s little doubt that the amount of data that each of us provides to strangers every day would astonish Brandeis and Warren—let alone Jefferson and Madison.
And this leads me to what I consider to be the key question. Why is it that people are willing to expose large quantities of information to private parties but don’t want the Government to have the same information? Why, for example, don’t we care if the telephone company keeps records of all of our phone calls on its servers, but we feel very differently about the prospect of the same information being on NSA servers? This does not seem to me to be a difficult question: we care because of what the Government could do with the information.
Unlike a phone company, the Government has the power to audit our tax returns, to prosecute and imprison us, to grant or deny licenses to do business, and many other things. And there is an entirely understandable concern that the Government may abuse this power. I don’t mean to say that private companies don’t have a lot of power over us. Indeed, the growth of corporate privacy policies, and the strong public reaction to the inadvertent release or commercial use of personal information, reinforces my belief that our primary privacy concern today is less with who has information than with what they do with it. But there is no question that the Government, because of its powers, is properly viewed in a different light.
On the other hand, just as consumers around the world make extensive use of modern technology, so too do potentially hostile foreign governments and foreign terrorist organizations. Indeed, we know that terrorists and weapons proliferators are using global information networks to conduct research, to communicate and to plan attacks. Information that can help us identify and prevent terrorist attacks or other threats to our security is often hiding in plain sight among the vast amounts of information flowing around the globe. New technology means that the Intelligence Community must continue to find new ways to locate and analyze foreign intelligence. We need to be able to do more than connect the dots when we happen to find them; we need to be able to find the right dots in the first place.
One approach to protecting privacy would be to limit the Intelligence Community to a targeted, focused query looking for specific information about an identified individual based on probable cause. But from the national security perspective, that would not be sufficient. The business of foreign intelligence has always been fundamentally different from the business of criminal investigation. Rather than attempting to solve crimes that have happened already, we are trying to find out what is going to happen before it happens. We may have only fragmentary information about someone who is plotting a terrorist attack, and need to find him and stop him. We may get information that is useless to us without a store of data to match it against, such as when we get the telephone number of a terrorist and want to find out who he has been in touch with. Or we may learn about a plot that we were previously unaware of, causing us to revisit old information and find connections that we didn’t notice before—and that we would never know about if we hadn’t collected the information and kept it for some period of time. We worry all the time about what we are missing in our daily effort to protect the Nation and our allies.
So on the one hand there are vast amounts of data that contains intelligence needed to protect us not only from terrorism, but from cyber attacks, weapons of mass destruction, and good old-fashioned espionage. And on the other hand, giving the Intelligence Community access to this data has obvious privacy implications. We achieve both security and privacy protection in this context in large part by a framework that establishes appropriate controls on what the Government can do with the information it lawfully collects, and appropriate oversight to ensure that it respects those controls. The protections depend on such factors as the type of information we collect, where we collect it, the scope of the collection, and the use the Government intends to make of the information. In this way we can allow the Intelligence Community to acquire necessary foreign intelligence, while providing privacy protections that take account of modern technology.
IV. FISA Collection
In showing that this approach is in fact the way our system deals with intelligence collection, I’ll use FISA as an example for a couple of reasons. First, because FISA is an important mechanism through which Congress has legislated in the area of foreign intelligence collection. Second, because it covers a wide range of activities, and involves all three sources of law I mentioned earlier: constitutional, statutory and executive. And third, because several previously classified examples of what we do under FISA have recently been declassified, and I know people want to hear more about them.
I don’t mean to suggest that FISA is the only way we collect foreign intelligence. But it’s important to know that, by virtue of Executive Order 12333, all of the collection activities of our intelligence agencies have to be directed at the acquisition of foreign intelligence or counterintelligence. Our intelligence priorities are set annually through an interagency process. The leaders of our Nation tell the Intelligence Community what information they need in the service of the Nation, its citizens and its interests, and we collect information in support of those priorities.
I want to emphasize that the United States, as a democratic nation, takes seriously this requirement that collection activities have a valid foreign intelligence purpose. We do not use our foreign intelligence collection capabilities to steal the trade secrets of foreign companies in order to give American companies a competitive advantage. We do not indiscriminately sweep up and store the contents of the communications of Americans, or of the citizenry of any country.
We do not use our intelligence collection for the purpose of repressing the citizens of any country because of their political, religious or other beliefs. We collect metadata—information about communications—more broadly than we collect the actual content of communications, because it is less intrusive than collecting content and in fact can provide us information that helps us more narrowly focus our collection of content on appropriate targets. But it simply is not true that the United States Government is listening to everything said by every citizen of any country.
Let me turn now to FISA. I’m going to talk about three provisions of that law: traditional FISA orders, the FISA business records provision, and Section 702. These provisions impose limits on what kind of information can be collected and how it can be collected, require procedures restricting what we can do with the information we collect and how long we can keep it, and impose oversight to ensure that the rules are followed. This sets up a coherent regime in which protections are afforded at the front end, when information is collected; in the middle, when information is reviewed and used; and at the back end, through oversight, all working together to protect both national security and privacy. The rules vary depending on factors such as the type of information being collected (and in particular whether or not we are collecting the content of communications), the nature of the person or persons being targeted, and how narrowly or broadly focused the collection is. They aren’t identical in every respect to the rules that apply to criminal investigations, but I hope to persuade you that they are reasonable and appropriate in the very different context of foreign intelligence.
So let’s begin by talking about traditional FISA collection. Prior to the passage of FISA in 1978, the collection of foreign intelligence was essentially unregulated by statutory law. It was viewed as a core function of the Executive Branch. In fact, when the criminal wiretap provisions were originally enacted, Congress expressly provided that they did not “limit the constitutional power of the President . . . to obtain foreign intelligence information . . . deemed essential to the national security of the United States.” However, ten years later, as a result of abuses revealed by the Church and Pike Committees, Congress imposed a judicial check on some aspects of electronic surveillance for foreign intelligence purposes. This is what is now codified in Title I of FISA, sometimes referred to as “traditional FISA.”
FISA established a special court, the Foreign Intelligence Surveillance Court, to hear applications by the Government to conduct electronic surveillance for foreign intelligence purposes. Because traditional FISA surveillance involves acquiring the content of communications, it is intrusive, implicating recognized privacy interests; and because it can be directed at individuals inside the United States, including American citizens, it implicates the Fourth Amendment. In FISA, Congress required that to get a “traditional” FISA electronic surveillance order, the Government must establish probable cause to believe that the target of surveillance is a foreign power or an agent of a foreign power, a probable cause standard derived from the standard used for wiretaps in criminal cases. And if the target is a U.S. person, he or she cannot be deemed an agent of a foreign power based solely on activity protected by the First Amendment—you cannot be the subject of surveillance merely because of what you believe or think.
Moreover, by law the use of information collected under traditional FISA must be subject to minimization procedures, a concept that is key throughout FISA. Minimization procedures are procedures, approved by the FISA Court, that must be “reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of non-publicly available information concerning un-consenting United States persons consistent with the need of the United States to obtain, produce and disseminate foreign intelligence information.” For example, they generally prohibit disseminating the identity of a U.S. person unless the identity itself is necessary to understand the foreign intelligence or is evidence of a crime. The reference to the purpose and technique of the particular surveillance is important. Minimization procedures can and do differ depending on the purpose of the surveillance and the technique used to implement it. These tailored minimization procedures are an important way in which we provide appropriate protections for privacy.
So let me explain in general terms how traditional FISA surveillance works in practice. Let’s say that the FBI suspects someone inside the United States of being a spy, or a terrorist, and they want to conduct electronic surveillance. While there are some exceptions spelled out in the law, such as in the case of an emergency, as a general rule they have to present an application to the FISA Court establishing probable cause to believe that the person is an agent of a foreign power, according to the statutory definition. That application, by the way, is reviewed at several levels within both the FBI and Department of Justice before it is submitted to the Court. Now, the target may have a conversation with a U.S. person that has nothing to do with the foreign intelligence purpose of the surveillance, such as talking to a neighbor about a dinner party.
Under the minimization procedures, an analyst who listens to a conversation involving a U.S. person that has no foreign intelligence value cannot generally share it or disseminate it unless it is evidence of a crime. Even if a conversation has foreign intelligence value—let’s say a terrorist is talking to a confederate—that information may only be disseminated to someone with an appropriate need to know the information pursuant to his or her mission.
In other words, electronic surveillance under FISA’s Title I implicates the well-recognized privacy interest in the contents of communications, and is subject to corresponding protections for that privacy interest—in terms of the requirements that it be narrowly targeted and that it have a substantial factual basis approved by the Court, and in terms of the limitations imposed on use of the information.
Now let me turn to the second activity, the collection of business records. After FISA was passed, it became apparent that it left some significant gaps in our intelligence collection authority. In particular, while the Government had the power in a criminal investigation to compel the production of records with a grand jury subpoena, it lacked similar authority in a foreign intelligence investigation. So a provision was added in 1998 to provide such authority, and was amended by Section 215 of the USA-PATRIOT Act passed shortly after 9/11. This provision, which is generally referred to as “Section 215,” allows us to apply to the FISA Court for an order requiring production of documents or other tangible things when they are relevant to an authorized national security investigation. Records can be produced only if they are the type of records that could be obtained pursuant to a grand jury subpoena or other court process—in other words, where there is no statutory or other protection that would prevent use of a grand jury subpoena. In some respects this process is more restrictive than a grand jury subpoena. A grand jury subpoena is issued by a prosecutor without any prior judicial review, whereas under the FISA business records provision we have to get court approval. Moreover, as with traditional FISA, records obtained pursuant to the FISA business records provision are subject to court-approved minimization procedures that limit the retention and dissemination of information about U.S. persons—another requirement that does not apply to grand jury subpoenas.
Now, of course, the FISA business records provision has been in the news because of one particular use of that provision. The FISA Court has repeatedly approved orders directing several telecommunications companies to produce certain categories of telephone metadata, such as the number calling, the number being called, and the date, time and duration of the call. It’s important to emphasize that under this program we do not get the content of any conversation; we do not get the identity of any party to the conversation; and we do not get any cell site or GPS locational information.
The limited scope of what we collect has important legal consequences. As I mentioned earlier, the Supreme Court has held that if you have voluntarily provided this kind of information to third parties, you have no reasonable expectation of privacy in that information. All of the metadata we get under this program is information that the telecommunications companies obtain and keep for their own business purposes. As a result, the Government can get this information without a warrant, consistent with the Fourth Amendment.
Nonetheless, I recognize that there is a difference between getting metadata about one telephone number and getting it in bulk. From a legal point of view, Section 215 only allows us to get records if they are “relevant” to a national security investigation, and from a privacy perspective people worry that, for example, the government could apply data mining techniques to a bulk data set and learn new personal facts about them—even though the underlying set of records is not subject to a reasonable expectation of privacy for Fourth Amendment purposes.
On the other hand, this information is clearly useful from an intelligence perspective: It can help identify links between terrorists overseas and their potential confederates in the United States. It’s important to understand the problem this program was intended to solve. Many will recall that one of the criticisms made by the 9/11 Commission was that we were unable to find the connection between a hijacker who was in California and an al-Qaida safe house in Yemen. Although NSA had collected the conversations from the Yemen safe house, they had no way to determine that the person at the other end of the conversation was in the United States, and hence to identify the homeland connection. This collection program is designed to help us find those connections.
In order to do so, however, we need to be able to access the records of telephone calls, possibly going back many years. However, telephone companies have no legal obligation to keep this kind of information, and they generally destroy it after a period of time determined solely by their own business purposes. And the different telephone companies have separate datasets in different formats, which makes analysis of possible terrorist calls involving several providers considerably slower and more cumbersome. That could be a significant problem in a fast-moving investigation where speed and agility are critical, such as the plot to bomb the New York City subways in 2009.
The way we fill this intelligence gap while protecting privacy illustrates the analytical approach I outlined earlier. From a subscriber’s point of view, as I said before, the difference between a telephone company keeping records of his phone calls and the Intelligence Community keeping the same information is what the Government could do with the records. That’s an entirely legitimate concern. We deal with it by limiting what the Intelligence Community is allowed do with the information we get under this program—limitations that are approved by the FISA Court:
- First, we put this information in secure databases.
- Second, the only intelligence purpose for which this information can be used is counterterrorism.
- Third, we allow only a limited number of specially trained analysts to search these databases.
- Fourth, even those trained analysts are allowed to search the database only when they have a reasonable and articulable suspicion that a particular telephone number is associated with particular foreign terrorist organizations that have been identified to the Court. The basis for that suspicion has to be documented in writing and approved by a supervisor.
- Fifth, they’re allowed to use this information only in a limited way, to map a network of telephone numbers calling other telephone numbers.
- Sixth, because the database contains only metadata, even if the analyst finds a previously unknown telephone number that warrants further investigation, all she can do is disseminate the telephone number. She doesn’t even know whose number it is. Any further investigation of that number has to be done pursuant to other lawful means, and in particular, any collection of the contents of communications would have to be done using another valid legal authority, such as a traditional FISA.
- Finally, the information is destroyed after five years.
The net result is that although we collect large volumes of metadata under this program, we only look at a tiny fraction of it, and only for a carefully circumscribed purpose—to help us find links between foreign terrorists and people in the United States. The collection has to be broad to be operationally effective, but it is limited to non-content data that has a low privacy value and is not protected by the Fourth Amendment. It doesn’t even identify any individual. Only the narrowest, most important use of this data is permitted; other uses are prohibited. In this way, we protect both privacy and national security.
Some have questioned how collection of a large volume of telephone metadata could comply with the statutory requirement that business records obtained pursuant to Section 215 be “relevant to an authorized investigation.” While the Government is working to determine what additional information about the program can be declassified and disclosed, including the actual court papers, I can give a broad summary of the legal basis. First, remember that the “authorized investigation” is an intelligence investigation, not a criminal one. The statute requires that an authorized investigation be conducted in accordance with guidelines approved by the Attorney General, and those guidelines allow the FBI to conduct an investigation into a foreign terrorist entity if there is an “articulable factual basis…that reasonably indicates that the [entity] may have engaged in… international terrorism or other threat to the national security,” or may be planning or supporting such conduct. In other words, we can investigate an organization, not merely an individual or a particular act, if there is a factual basis to believe the organization is involved in terrorism. And in this case, the Government’s applications to collect the telephony metadata have identified the particular terrorist entities that are the subject of the investigations.
Second, the standard of “relevance” required by this statute is not the standard that we think of in a civil or criminal trial under the rules of evidence. The courts have recognized in other contexts that “relevance” can be an extremely broad standard. For example, in the grand jury context, the Supreme Court has held that a grand jury subpoena is proper unless “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.” And in civil discovery, relevance is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.”
In each of these contexts, the meaning of “relevance” is sufficiently broad to allow for subpoenas or requests that encompass large volumes of records in order to locate within them a smaller subset of material that will be directly pertinent to or actually be used in furtherance of the investigation or proceedings. In other words, the requester is not limited to obtaining only those records that actually are potentially incriminating or pertinent to establishing liability, because to identify such records, it is often necessary to collect a much broader set of the records that might potentially bear fruit by leading to specific material that could bear on the issue.
When it passed the business records provision, Congress made clear that it had in mind such broad concepts of relevance. The telephony metadata collection program meets this relevance standard because, as I explained earlier, the effectiveness of the queries allowed under the strict limitations imposed by the court—the queries based on “reasonable and articulable suspicion”—depends on collecting and maintaining the data from which the narrowly focused queries can be made. As in the grand jury and civil discovery contexts, the concept of “relevance” is broad enough to allow for the collection of information beyond that which ultimately turns out to be important to a terrorist-related investigation. While the scope of the collection at issue here is broader than typically might be acquired through a grand jury subpoena or civil discovery request, the basic principle is similar: the information is relevant because you need to have the broader set of records in order to identify within them the information that is actually important to a terrorism investigation. And the reasonableness of this method of collection is reinforced by all of the stringent limitations imposed by the Court to ensure that the data is used only for the approved purpose.
I want to repeat that the conclusion that the bulk metadata collection is authorized under Section 215 is not that of the Intelligence Community alone. Applications to obtain this data have been repeatedly approved by numerous judges of the FISA Court, each of whom has determined that the application complies with all legal requirements. And Congress reauthorized Section 215 in 2011, after the Intelligence and Judiciary Committees of both Houses had been briefed on the program, and after information describing the program had been made available to all Members. In short, all three branches of Government have determined that this collection is lawful and reasonable—in large part because of the substantial protections we provide for the privacy of every person whose telephone number is collected.
The third program I want to talk about is Section 702, part of the FISA Amendments Act of 2008. Again, a little history is in order. Generally speaking, as I said before, Title I of FISA, or traditional FISA, governs electronic surveillance conducted within the United States for foreign intelligence purposes. When FISA was first passed in 1978, Congress did not intend it to regulate the targeting of foreigners outside of the United States for foreign intelligence purposes.
This kind of surveillance was generally carved out of coverage under FISA by the way Congress defined “electronic surveillance.” Most international communications in 1978 took place via satellite, so Congress excluded international radio communications from the definition of electronic surveillance covered by FISA, even when the radio waves were intercepted in the United States, unless the target of the collection was a U.S. person in the United States.
Over time, that technology-based differentiation fell apart. By the early twenty-first century, most international communications travelled over fiber optic cables and thus were no longer “radio communications” outside of FISA’s reach. At the same time there was a dramatic increase in the use of the Internet for communications purposes, including by terrorists. As a result, Congress original intention was frustrated; we were increasingly forced to go to the FISA Court to get individual warrants to conduct electronic surveillance of foreigners overseas for foreign intelligence purposes.
After 9/11, this burden began to degrade our ability to collect the communications of foreign terrorists. Section 702 created a new, more streamlined procedure to accomplish this surveillance. So Section 702 was not, as some have called it, a “defanging” of the FISA Court’s traditional authority. Rather, it extended the FISA Court’s oversight to a kind of surveillance that Congress had originally placed outside of that oversight: the surveillance, for foreign intelligence purposes, of foreigners overseas. This American regime imposing judicial supervision of a kind of foreign intelligence collection directed at citizens of other countries is a unique limitation that, so far as I am aware, goes beyond what other countries require of their intelligence services when they collect against persons who are not their own citizens.
The privacy and constitutional interests implicated by this program fall between traditional FISA and metadata collection. On the one hand we are collecting the full content of communications; on the other hand we are not collecting information in bulk and we are only targeting non-U.S. persons for valid foreign intelligence purposes. And the information involved is unquestionably of great importance for national security: collection under Section 702 is one of the most valuable sources of foreign intelligence we have. Again, the statutory scheme, and the means by which we implement it, are designed to allow us to collect this intelligence, while providing appropriate protections for privacy. Collection under Section 702 does not require individual judicial orders authorizing collection against each target. Instead, the FISA Court approves annual certifications submitted by the Attorney General and the Director of National Intelligence that identify categories of foreign intelligence that may be collected, subject to Court-approved “targeting” procedures and “minimization” procedures.
The targeting procedures are designed to ensure that we target someone only if we have a valid foreign intelligence purpose; that we target only non-U.S. persons reasonably believed to be outside of the United States; that we do not intercept wholly domestic communications; and that we do not target any person outside the United States as a “back door” means of targeting someone inside the United States. The procedures must be reviewed by the Court to ensure that they are consistent with the statute and the Fourth Amendment. In other words, the targeting procedures are a way of minimizing the privacy impact of this collection both as to Americans and as to non-Americans by limiting the collection to its intended purpose.
The concept of minimization procedures should be familiar to you by now: they are the procedures that limit the retention and dissemination of information about U.S. persons. We may incidentally acquire the communications of Americans even though we are not targeting them, for example if they talk to non-U.S. persons outside of the United States who are properly targeted for foreign intelligence collection. Some of these communications may be pertinent; some may not be. But the incidental acquisition of non-pertinent information is not unique to Section 702. It is common whenever you lawfully collect information, whether it’s by a criminal wiretap (where the target’s conversations with his friends or family may be intercepted) or when we seize a terrorist’s computer or address book, either of which is likely to contain non-pertinent information. In passing Section 702, Congress recognized this reality and required us to establish procedures to minimize the impact of this incidental collection on privacy.
How does Section 702 work in practice? As of today, there are certifications for several different categories of foreign intelligence information. Let’s say that the Intelligence Community gets information that a terrorist is using a particular email address. NSA analysts look at available data to assess whether that email address would be a valid target under the statute—whether the email address belongs to someone who is not a U.S. person, whether the person with the email address is outside the United States, and whether targeting that email address is likely to lead to the collection of foreign intelligence relevant to one of the certifications. Only if all three requirements of the statute are met, and validated by supervisors, will the email address be approved for targeting. We don’t randomly target email addresses or collect all foreign individuals’ emails under Section 702; we target specific accounts because we are looking for foreign intelligence information. And even after a target is approved, the court approved procedures require NSA to continue to verify that its targeting decision is valid based on any new information.
Any communications that we collect under Section 702 are placed in secure databases, again with limited access. Trained analysts are allowed to use this data for legitimate foreign intelligence purposes, but the minimization procedures require that if they review a communication that they determine involves a U.S. person or information about a U.S. person, and they further determine that it has no intelligence value and is not evidence of a crime, it must be destroyed. In any case, conversations that are not relevant are destroyed after a maximum of five years. So under Section 702, we have a regime that involves judicial approval of procedures that are designed to narrow the focus of the surveillance and limit its impact on privacy. I’ve outlined three different collection programs, under different provisions of FISA, which all reflect the framework I described. In each case, we protect privacy by a multi-layered system of controls on what we collect and how we use what we collect, controls that are based on the nature and intrusiveness of the collection, but that take into account the ways in which that collection can be useful to protect national security. But we don’t simply set out a bunch of rules and trust people to follow them. There are substantial safeguards in place that help ensure that the rules are followed.
These safeguards operate at several levels. The first is technological. The same technological revolution that has enabled this kind of intelligence collection and made it so valuable also allows us to place relatively stringent controls on it. For one thing, intelligence agencies can work with providers so that they provide the information we are allowed to acquire under the relevant order, and not additional information. Second, we have secure databases to hold this data, to which only trained personnel have access. Finally, modern information security techniques allow us to create an audit trail tracking who uses these databases and how, so that we have a record that can enable us to identify any possible misuse. And I want to emphasize that there’s no indication so far that anyone has defeated those technological controls and improperly gained access to the databases containing people’s communications. Documents such as the leaked secondary order are kept on other NSA databases that do not contain this kind of information, to which many more NSA personnel have access.
We don’t rely solely on technology. NSA has an internal compliance officer, whose job includes developing processes that all NSA personnel must follow to ensure that NSA is complying with the law. In addition, decisions about what telephone numbers we use as a basis for searching the telephone metadata are reviewed first within NSA, and then by the Department of Justice. Decisions about targeting under Section 702 are reviewed first within NSA, and then by the Department of Justice and by my agency, the Office of the Director of National Intelligence, which has a dedicated Civil Liberties Protection Officer who actively oversees these programs. For Title I collection, the Department of Justice regularly conducts reviews to ensure that information collected is used and disseminated in accordance with the court-approved minimization procedures. Finally, independent Inspectors General also review the operation of these programs. The point is not that these individuals are perfect; it’s that as you have more and more people from more and more organizations overseeing the operation of the programs, it becomes less and less likely that unintentional errors will go unnoticed or that anyone will be able to misuse the information.
But wait, there’s more. In addition to this oversight by the Executive Branch, there is considerable oversight by both the FISA Court and the Congress. As I’ve said, the FISA Court has to review and approve the procedures by which we collect intelligence under FISA, to ensure that those procedures comply with the statute and the Fourth Amendment. In addition, any compliance matter, large or small, has to be reported to the Court. Improperly collected information generally must be deleted, subject only to some exceptions set out in the Court’s orders, and corrective measures are taken and reported to the Court until it is satisfied.
And I want to correct the erroneous claim that the FISA Court is a rubber stamp. Some people assume that because the FISA Court approves almost every application, it does not give these applications careful scrutiny. In fact the exact opposite is true. The judges and their professional staff review every application carefully, and often ask extensive and probing questions, seek additional information, or request changes, before the application is ultimately approved. Yes, the Court approves the great majority of applications at the end of this process, but before it does so, its questions and comments ensure that the application complies with the law.
Finally, there is the Congress. By law, we are required to keep the Intelligence and Judiciary Committees informed about these programs, including detailed reports about their operation and compliance matters. We regularly engage with them and discuss these authorities, as we did this week, to provide them information to further their oversight responsibilities. For example, when Congress reauthorized Section 215 in 2009 and 2011 and Section 702 in 2012, information was made available to every member of Congress, by briefings and written material, describing these programs in detail.
In short, the procedures by which we implement collection under FISA are a sensible means of accounting for the changing nature of privacy in the information age. They allow the Intelligence Community to collect information that is important to protect our Nation and its allies, while protecting privacy by imposing appropriate limits on the use of that information. Much is collected, but access, analysis and dissemination are subject to stringent controls and oversight. This same approach—making the extent and nature of controls over the use of information vary depending on the nature and sensitivity of the collection—is applied throughout our intelligence collection.
And make no mistake, our intelligence collection has helped to protect our Nation from a variety of threats—and not only our Nation, but the rest of the world. We have robust intelligence relationships with many other countries. These relationships go in both directions, but it is important to understand that we cannot use foreign intelligence to get around the limitations in our laws, and we assume that our other countries similarly expect their intelligence services to operate in compliance with their own laws. By working closely with other countries, we have helped ensure our common security. For example, while many of the details remain classified, we have provided the Congress a list of fifty-four cases in which the bulk metadata and Section 702 authorities have given us information that helped us understand potential terrorist activity and even disrupt it, from potential bomb attacks to material support for foreign terrorist organizations. Forty-one of these cases involved threats in other countries, including twenty-five in Europe. We were able to alert officials in these countries to these events, and help them fulfill their mission of protecting their nations, because of these capabilities.
I believe that our approach to achieving both security and privacy is effective and appropriate. It has been reviewed and approved by all three branches of Government as consistent with the law and the Constitution. It is not the only way we could regulate intelligence collection, however. Even before the recent disclosures, the President said that we welcomed a discussion about privacy and national security, and we are working to declassify more information about our activities to inform that discussion. In addition, the Privacy and Civil Liberties Oversight Board—an independent body charged by law with overseeing our counterterrorism activities—has announced that it intends to provide the President and Congress a public report on the Section 215 and 702 programs, including the collection of bulk metadata. The Board met recently with the President, who welcomed their review and committed to providing them access to all materials they will need to fulfill their oversight and advisory functions. We look forward to working with the Board on this important project.
This discussion can, and should, have taken place without the recent disclosures, which have brought into public view the details of sensitive operations that were previously discussed on a classified basis with the Congress and in particular with the committees that were set up precisely to oversee intelligence operations. The level of detail in the current public debate certainly reflects a departure from the historic understanding that the sensitive nature of intelligence operations demanded a more limited discussion. Whether or not the value of the exposure of these details outweighs the cost to national security is now a moot point. As the debate about our surveillance programs goes forward, I hope that my remarks today have helped provide an appreciation of the efforts that have been made—and will continue to be made—to ensure that our intelligence activities comply with our laws and reflect our values.
Remarks prepared for delivery by Senator Ron Wyden to the Center for American Progress Event on National Security Agency Surveillance, Washington, DC
(July 23, 2013)
Source: Office of Senator Ron Wyden
Thank you for having me this morning. The Center for American Progress and the noted privacy hawk John Podesta have long been pursuing thoughtful intelligence policy. Since opening your doors in 2003 you have been making the case that security and liberty are not mutually exclusive, and your work is well known in my office and throughout Washington.
When the Patriot Act was last reauthorized, I stood on the floor of the United States Senate and said, “I want to deliver a warning this afternoon. When the American people find out how their government has interpreted the Patriot Act, they are going to be stunned and they are going to be angry.” From my position on the Senate Intelligence Committee, I had seen government activities conducted under the umbrella of the Patriot Act that I knew would astonish most Americans.
At the time, Senate rules about classified information barred me from giving any specifics of what I’d seen except to describe it as Secret Law, a secret interpretation of the Patriot Act, issued by a secret court, that authorizes secret surveillance programs that I and colleagues think go far beyond the intent of the statute.
If that is not enough to give you pause, then consider that not only were the existence of and the legal justification for these programs kept completely secret from the American people; senior officials from across the government were making statements to the public about domestic surveillance that were clearly misleading and at times simply false. Senator Mark Udall and I tried again and again to get the executive branch to be straight with the public, but under the classification rules observed by the Senate we are not even allowed to tap the truth out in Morse code and we tried just about everything else we could think of to warn the American people.
But as I’ve said before, one way or another the truth always wins out. Last month, disclosures made by an NSA contractor lit the surveillance world on fire. Several provisions of secret law were no longer secret and the American people were finally able to see some of the things I’ve been raising the alarm about for years. And when they did, boy were they stunned, and boy are they angry.
You hear it in the lunchrooms, town hall meetings and senior citizen centers. The latest polling, the well-respected Quinnipiac poll, found that a plurality of people said the government is overreaching and encroaching too much on Americans’ civil liberties. That’s a huge swing from what that same survey said just a couple years ago, and that number is trending upward. As more information about sweeping government surveillance of law-abiding Americans is made public and the American people can discuss its impacts, I believe more Americans will speak out. They’re going to say, in America, you don’t have to settle for one priority or the other: laws can be written to protect both privacy and security, and laws should never be secret.
After 9/11, when 3,000 Americans were murdered by terrorists, there was a consensus that our government needed to take decisive action. At a time of understandable panic, Congress gave the government new surveillance authorities, but attached an expiration date to these authorities so that they could be deliberated more carefully once the immediate emergency had passed. Yet in the decade since, that law has been extended several times with no public discussion about how the law has actually been interpreted.
The result: the creation of an always expanding, omnipresent surveillance state that hour by hour chips needlessly away at the liberties and freedoms our Founders established for us, without the benefit of actually making us any safer.
So, today I’m going to deliver another warning: If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we will all live to regret it. I’ll have more to say about the consequences of the omnipresent surveillance state, but as you listen to this talk, ponder that most of us have a computer in our pocket that potentially can be used to track and monitor us 24/7.
The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead us to a surveillance state that cannot be reversed.
At this point, a little bit of history might be helpful. I joined the Senate Intelligence Committee in January 2001, just before 9/11. Like most senators I voted for the original Patriot Act, in part, because I was reassured that it had an expiration date that would force Congress to come back and consider these authorities more carefully when the immediate crisis had passed. As time went on, from my view on the Intelligence Committee there were developments that seemed farther and farther removed from the ideals of our Founding Fathers. This started not long after 9/11, with a Pentagon program called Total Information Awareness, which was essentially an effort to develop an ultra large scale domestic data mining system. Troubled by this effort, and its not- exactly modest logo of an all-seeing eye on the universe, I worked with a number of senators to shut it down. Unfortunately, this was hardly the last domestic surveillance overreach. In fact, the NSA’s infamous warrantless wiretapping program was already up and running at that point, though I, and most members of the Intelligence Committee didn’t learn about it until a few years later. This was part of a pattern of withholding information from Congress that persisted throughout the Bush administration. I joined the Intelligence Committee in 2001, but I learned about the warrantless wiretapping program when you read about it in the New York Times in late 2005.
The Bush administration spent most of 2006 attempting to defend the warrantless wiretapping program. Once again, when the truth came out, it produced a surge of public pressure and the Bush administration announced that they would submit to oversight from Congress and the Foreign Intelligence Surveillance Court, also known as the FISA Court.
Unfortunately, because the FISA Court’s rulings are secret, most Americans had no idea that the Court was prepared to issue incredibly broad rulings, permitting the massive surveillance that finally made headlines last month.
It’s now a matter of public record that the bulk phone records program has been operating since at least 2007. It’s not a coincidence that a handful of senators have been working since then to find ways to alert the public about what has been going on. Months and years went into trying to find ways to raise public awareness about secret surveillance authorities within the confines of classification rules.
I and several of my colleagues have made it our mission to end the use of secret law.
When Oregonians hear the words secret law, they have come up to me and asked, “Ron, how can the law be secret? When you guys pass laws that’s a public deal. I’m going to look them up online.” In response, I tell Oregonians that there are effectively two Patriot Acts; the first is the one that they can read on their laptop in Medford or Portland, analyze and understand. Then there’s the real Patriot Act; the secret interpretation of the law that the government is actually relying upon. The secret rulings of the Foreign Intelligence Surveillance Court have interpreted the Patriot Act, as well as section 702 of the FISA statute, in some surprising ways, and these rulings are kept entirely secret from the public. These rulings can be astoundingly broad. The one that authorizes the bulk collection of phone records is as broad as any I have ever seen.
This reliance of government agencies on a secret body of law has real consequences. Most Americans don’t expect to know the details about ongoing sensitive military and intelligence activities, but as voters they absolutely have a need and a right to know what their government thinks it is permitted to do, so that they can ratify or reject decisions that elected officials make on their behalf. To put it another way, Americans recognize that intelligence agencies will sometimes need to conduct secret operations, but they don’t think those agencies should be relying on secret law.
Now, some argue that keeping the meaning of surveillance laws secret is necessary, because it makes it easier to gather intelligence on terrorist groups and other foreign powers. If you follow this logic, when Congress passed the original Foreign Intelligence Surveillance Act back in the 1970s, they could have found a way to make the whole thing secret, so that Soviet agents wouldn’t know what the FBI’s surveillance authorities were. But that’s not the way you do it in America.
It is a fundamental principle of American democracy that laws should not be public only when it is convenient for government officials to make them public. They should be public all the time, open to review by adversarial courts, and subject to change by an accountable legislature guided by an informed public. If Americans are not able to learn how their government is interpreting and executing the law then we have effectively eliminated the most important bulwark of our democracy. That’s why, even at the height of the Cold War, when the argument for absolute secrecy was at its zenith, Congress chose to make US surveillance laws public.
Without public laws, and public court rulings interpreting those laws, it is impossible to have informed public debate. And when the American people are in the dark, they can’t make fully informed decisions about who should represent them, or protest policies that they disagree with. These are fundamentals. It’s Civics 101. And secret law violates those basic principles. It has no place in America.
Now let’s turn to the secret court the Foreign Intelligence Surveillance Court, the one virtually no one had heard of two months ago and now the public asks me about at the barber.
When the FISA court was created as part of the 1978 FISA law its work was pretty routine. It was assigned to review government applications for wiretaps and decide whether the government was able to show probable cause. Sounds like the garden variety function of district court judges across America. In fact, their role was so much like a district court that the judges who make up the FISA Court are all current federal district court judges.
After 9/11, Congress passed the Patriot Act and the FISA Amendments Act. This gave the government broad new surveillance powers that didn’t much resemble anything in either the criminal law enforcement world or the original FISA law. The FISA Court got the job of interpreting these new, unparalleled authorities of the Patriot Act and FISA Amendments Act. They chose to issue binding secret rulings that interpreted the law and the Constitution in the startling way that has come to light in the last six weeks. They were to issue the decision that the Patriot Act could be used for dragnet, bulk surveillance of law abiding Americans.
Outside the names of the FISA court judges, virtually everything else is secret about the court. Their rulings are secret, which makes challenging them in an appeals court almost impossible. Their proceedings are secret too, but I can tell you that they are almost always one sided. The government lawyers walk in and lay out an argument for why the government should be allowed to do something, and the Court decides based solely on the judge’s assessment of the government’s arguments.
That’s not unusual if a court is considering a routine warrant request, but it’s very unusual if a court is doing major legal or constitutional analysis. I know of absolutely no other court in this country that strays so far from the adversarial process that has been part of our system for centuries.
It may also surprise you to know that when President Obama came to office, his administration agreed with me that these rulings needed to be made public. In the summer of 2009 I received a written commitment from the Justice Department and the Office of the Director of National Intelligence that a process would be created to start redacting and declassifying FISA Court opinions, so that the American people could have some idea of what the government believes the law allows it to do. In the last four years exactly zero opinions have been released.
Now that we know a bit about secret law and the court that created it, let’s talk about how it has diminished the rights of every American man, woman and child.
Despite the efforts of the intelligence community leadership to downplay the privacy impact of the Patriot Act collection, the bulk collection of phone records significantly impacts the privacy of millions of law abiding Americans. If you know who someone called, when they called, where they called from, and how long they talked, you lay bare the personal lives of law abiding Americans to the scrutiny of government bureaucrats and outside contractors.
This is particularly true if you’re vacuuming up cell phone location data, essentially turning every American’s cell phone into a tracking device. We are told this is not happening today, but intelligence officials have told the press that they currently have the legal authority to collect Americans’ location information in bulk.
Especially troubling is the fact that there is nothing in the Patriot Act that limits this sweeping bulk collection to phone records. The government can use the Patriot Act’s business records authority to collect, collate and retain all sorts of sensitive information, including medical records, financial records, or credit card purchases. They could use this authority to develop a database of gun owners or readers of books and magazines deemed subversive. This means that the government’s authority to collect information on law abiding American citizens is essentially limitless. If it is a record held by a business, membership organization, doctor, or school, or any other third party, it could be subject to bulk collection under the Patriot Act.
Authorities this broad give the national security bureaucracy the power to scrutinize the personal lives of every law abiding American. Allowing that to continue is a grave error that demonstrates a willful ignorance of human nature. Moreover, it demonstrates a complete disregard for the responsibilities entrusted to us by the Founding Fathers to maintain robust checks and balances on the power of any arm of the government.
That obviously raises some very serious questions. What happens to our government, our civil liberties and our basic democracy if the surveillance state is allowed to grow unchecked?
As we have seen in recent days, the intelligence leadership is determined to hold on to this authority. Merging the ability to conduct surveillance that reveals every aspect of a person’s life with the ability to conjure up the legal authority to execute that surveillance, and finally, removing any accountable judicial oversight, creates the opportunity for unprecedented influence over our system of government.
Without additional protections in the law, every single one of us in this room may be and can be tracked and monitored anywhere we are at any time. The piece of technology we consider vital to the conduct of our everyday personal and professional life happens to be a combination phone bug, listening device, location tracker, and hidden camera. There isn’t an American alive who would consent to being required to carry any one of those items and so we must reject the idea that the government may use its powers to arbitrarily bypass that consent.
Today, government officials are openly telling the press that they have the authority to effectively turn Americans’ smart phones and cell phones into location-enabled homing beacons. Compounding the problem is the fact that the case law is unsettled on cell phone tracking and the leaders of the intelligence community have consistently been unwilling to state what the rights of law-abiding people are on this issue. Without adequate protections built into the law there’s no way that Americans can ever be sure that the government isn’t going to interpret its authorities more and more broadly, year after year, until the idea of a telescreen monitoring your every move turns from dystopia to reality.
Some would say that could never happen because there is secret oversight and secret courts that guard against it. But the fact of the matter is that senior policymakers and federal judges have deferred again and again to the intelligence agencies to decide what surveillance authorities they need. For those who believe executive branch officials will voluntarily interpret their surveillance authorities with restraint, I believe it is more likely that I will achieve my lifelong dream of playing in the NBA.
But seriously, when James Madison was attempting to persuade Americans that the Constitution contained sufficient protections against any politician or bureaucrat seizing more power than that granted to them by the people, he did not just ask his fellow Americans to trust him. He carefully laid out the protections contained in the Constitution and how the people could ensure they were not breached. We are failing our constituents, we are failing our founders, and we are failing every brave man and woman who fought to protect American democracy if we are willing, today, to just trust any individual or any agency with power greater than the checked and limited authority that serves as a firewall against tyranny.
Now I want to spend a few minutes talking about those who make up the intelligence community and day in and day out work to protect us all.
Let me be clear: I have found the men and women who work at our nation’s intelligence agencies to be hardworking, dedicated professionals. They are genuine patriots who make real sacrifices to serve their country. They should be able to do their jobs secure in the knowledge that there is public support for everything that they are doing. Unfortunately, that can’t happen when senior officials from across the government mislead the public about the government’s surveillance authorities.
And let’s be clear: the public was not just kept in the dark about the Patriot Act and other secret authorities. The public was actively misled. I’ve pointed out several instances in the past where senior officials have made misleading statements to the public and to Congress about the types of surveillance they are conducting on the American people, and I’ll recap some of the most significant examples.
For years, senior Justice Department officials have told Congress and the public that the Patriot Act’s business record authority which is the authority that is used to collect the phone records of millions of ordinary Americans is “analogous to a grand jury subpoena.” This statement is exceptionally misleading it strains the word “analogous” well beyond the breaking point. It’s certainly true that both authorities can be used to collect a wide variety of records, but the Patriot Act has been secretly interpreted to permit ongoing bulk collection, and this makes that authority very, very different from regular grand jury subpoena authority. Any lawyers in here? After the speech is over come up and tell me if you’ve ever seen a grand jury subpoena that allowed the government on an ongoing basis to collect the records of millions of ordinary Americans. The fact is that no one has seen a subpoena like that is because there aren’t any. This incredibly misleading analogy has been made by more than one official on more than one occasion and often as part of testimony to Congress. The official who served for years as the Justice Department’s top authority on criminal surveillance law recently told the Wall Street Journal that if a federal attorney “served a grand jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”
Defenders of this deception have said that members of Congress have the ability to get the full story of what the government is doing on a classified basis, so they shouldn’t complain when officials make misleading public statements, even in congressional hearings. That is an absurd argument. Sure, members of Congress COULD get the full story in a classified setting, but that does not excuse the practice of half truths and misleading statements being made on the public record. When did it become all right for government officials’ public statements and private statements to differ so fundamentally? The answer is that it is not all right, and it is indicative of a much larger culture of misinformation that goes beyond the congressional hearing room and into the public conversation writ large.
For example, last spring the Director of the National Security Agency spoke over at the American Enterprise Institute, where he said publicly that “we don’t hold data on U.S. citizens.” That statement sounds reassuring, but of course the American people now know that it is false. In fact, it’s one of the most false statements ever made about domestic surveillance. Later that same year, at the annual hackers’ conference known as DefCon, the same NSA Director said that the government does not collect “dossiers” on millions of Americans. Now I’ve served on the Intelligence Committee for a dozen years and I didn’t know what “dossiers” meant in this context. I do know that Americans not familiar with the classified details would probably hear that statement and think that there was no bulk collection of the personal information of hundreds of millions of Americans taking place.
After the Director of the NSA made this statement in public, Senator Udall and I wrote to the Director asking for a clarification. In our letter we asked whether the NSA collects any type of data at all on millions or hundreds of millions of Americans. Even though the Director of the NSA was the one who had raised this issue publicly, intelligence officials declined to give us a straight answer.
A few months ago, I made the judgment that I would not be responsibly carrying out my oversight powers if I didn’t press intelligence officials to clarify what the NSA Director told the public about data collection. So I decided it was necessary to put the question to the Director of National Intelligence. And I had my staff send the question over a day in advance so that he would be prepared to answer. The Director unfortunately said that the answer was no, the NSA does not knowingly collect data on millions of Americans, which is obviously not correct. After the hearing, I had my staff call the Director’s office on a secure line and urge them to correct the record. Disappointingly, his office decided to let this inaccurate statement stand. My staff made it clear that this was wrong and that it was unacceptable to leave the American public misled. I continued to warn the public about the problem of secret surveillance law over the following weeks, until the June disclosures.
Even after those disclosures, there has been an effort by officials to exaggerate the effectiveness of the bulk phone records collection program by conflating it with the collection of Internet communications under section 702 of the FISA statute. This collection, which involves the PRISM computer system, has produced some information of real value. I will note that last summer I was able to get the executive branch to declassify the fact that the FISA Court has ruled on at least one occasion that this collection violated the Fourth Amendment in a way that affected an undisclosed number of Americans. And the Court also said that the government has violated the spirit of the law as well. So, I think section 702 clearly needs stronger protections for the privacy of law-abiding Americans, and I think these protections could be added without losing the value of this collection. But I won’t deny that this value exists. Meanwhile, I have not seen any indication that the bulk phone records program yielded any unique intelligence that was not also available to the government through less intrusive means. When government officials refer to these programs collectively, and say that “these programs” provided unique intelligence without pointing out that one program is doing all the work and the other is basically just along for the ride, in my judgment that is also a misleading statement.
And there have also been a number of misleading and inaccurate statements made about section 702 collection as well. Last month, Senator Udall and I wrote to the NSA Director to point out that the NSA’s official fact sheet contained some misleading information and a significant inaccuracy that made protections for Americans’ privacy sound much stronger than they actually are. The next day that fact sheet was taken down from the front page of the NSA website. Would the misleading fact sheet still be up there if Senator Udall and I hadn’t pushed to take it down? Given what it took to correct the misleading statements of the Director of National Intelligence and the National Security Agency that may well be the case.
So having walked you through how secret law, interpreted by a secret court, authorized secret surveillance, the obvious question is what is next? “Ron, what are you going to do about it?”
A few weeks ago more than a quarter of the U.S. Senate wrote to the Director of National Intelligence demanding public answers to additional questions about the use of the government’s surveillance authorities. It’s been two months since the disclosures by Mr. Snowden, and the signers of this letter including key members of the senate leadership and committee chairs with decades of experience have made it clear they are not going to accept more stonewalling or misleading statements.
Patriot Act reform legislation has also been introduced. The centerpiece of this effort would require that the government show a demonstrated link to terrorism or espionage before collecting Americans’ personal information.
Senators have also proposed legislation that would ensure that the legal analysis of secret court opinions interpreting surveillance law is declassified in a responsible manner. And I am collaborating with colleagues to develop other reforms that will bring openness, accountability, and the benefits of an adversarial process to the anachronistic operations of the most secretive court in America.
And most importantly, I and my colleagues are working to keep the public debate alive. We have exposed misleading statements. We are holding officials accountable. And we are showing that liberty and security are not incompatible.
The fact is, the side of transparency and openness is starting to put some points on the board.
As many of you are now aware, the NSA also had a bulk email records program that was similar to the bulk phone records program. This program operated under section 214 of the Patriot Act, which is known as the “pen register” provision, until fairly recently. My Intelligence Committee colleague Senator Udall and I were very concerned about this program’s impact on Americans’ civil liberties and privacy rights, and we spent a significant portion of 2011 pressing intelligence officials to provide evidence of its effectiveness. It turned out that they were unable to do so, and that statements that had been made about this program to both Congress and the FISA Court had significantly exaggerated the program’s effectiveness. The program was shut down that same year. So that was a big win for everyone who cares about Americans’ privacy and civil liberties, even though Senator Udall and I weren’t able to tell anyone about it until just a few weeks ago.
More recently, when the annual Intelligence Authorization bill was going through the Intelligence Committee late last year it included a few provisions that were meant to stop intelligence leaks but that would have been disastrous to the news media’s ability to report on foreign policy and national security. Among other things, it would have restricted the ability of former government officials to talk to the press, even about unclassified foreign policy matters. And it would have prohibited intelligence agencies from making anyone outside of a few high-level officials available for background briefings, even on unclassified matters. These provisions were intended to stop leaks, but it’s clear to me that they would have significantly encroached upon the First Amendment, and led to a less informed public debate on foreign policy and national security matters.
These anti-leaks provisions went through the committee process in secret, and the bill was agreed to by a vote of 141 (I’ll let you all guess who that nay vote was). The bill then made its way to the Senate floor and a public debate. Once the bill became public, of course, it was promptly eviscerated by media and free speech advocates, who saw it as a terrible idea. I put a hold on the bill so that it could not be quickly passed without the discussion it deserved and within weeks, all of the anti-leaks provisions were removed.
A few months later, my colleagues and I were finally able to get the official Justice Department opinions laying out what the government believes the rules are for the targeted killings of Americans. You probably know this as the “drones” issue. These documents on killing Americans weren’t even being shared with members of Congress on a classified basis, let alone with the American people. You may have heard me say this before, but I believe every American has the right to know when their government thinks it is allowed to kill them. My colleagues and I fought publicly and privately to get these documents, used whatever procedural opportunities were available, and eventually got the documents we had demanded. Since then we’ve been looking them over and working out a strategy that would allow for the pertinent portions of these documents to be made public. I don’t take a backseat to anybody when it comes to protecting genuinely sensitive national security information, and I think most Americans expect that government agencies will sometimes conduct secret operations. But those agencies should never rely on secret law or authorities granted by secret courts.
We find ourselves at a truly unique time in our Constitutional history. The growth of digital technology, dramatic changes in the nature of warfare and the definition of a battlefield, and novel courts that run counter to everything the Founding Fathers imagined, make for a combustible mix. At this point in the speech I would usually conclude with the quote from Ben Franklin about giving up liberty for security and not deserving either, but I thought a different Founding Father might be more fitting today. James Madison, the father of our constitution, said that the accumulation of executive, judicial and legislative powers in the hands of any faction is the very definition of tyranny. He then went on to assure the nation that the Constitution protected us from that fate. So, my question to you is: by allowing the executive to secretly follow a secret interpretation of the law under the supervision of a secret, non-adversarial court and occasional secret congressional hearings, how close are we coming to James Madison’s “very definition of tyranny”? I believe we are allowing our country to drift a lot closer than we should, and if we don’t take this opportunity to change course now, we will all live to regret it.
Remarks by President Barack Obama in a Press Conference on National Security Agency Surveillance, Washington, DC (August 9, 2013)
Source: The White House
Over the past few weeks, I’ve been talking about what I believe should be our number-one priority as a country—building a better bargain for the middle class and for Americans who want to work their way into the middle class. At the same time, I’m focused on my number-one responsibility as Commander-in-Chief, and that’s keeping the American people safe. And in recent days, we’ve been reminded once again about the threats to our nation.
As I said at the National Defense University back in May, in meeting those threats we have to strike the right balance between protecting our security and preserving our freedoms. And as part of this rebalancing, I called for a review of our surveillance programs. Unfortunately, rather than an orderly and lawful process to debate these issues and come up with appropriate reforms, repeated leaks of classified information have initiated the debate in a very passionate, but not always fully informed way.
Now, keep in mind that as a senator, I expressed a healthy skepticism about these programs, and as President, I’ve taken steps to make sure they have strong oversight by all three branches of government and clear safeguards to prevent abuse and protect the rights of the American people. But given the history of abuse by governments, it’s right to ask questions about surveillance—particularly as technology is reshaping every aspect of our lives.
I’m also mindful of how these issues are viewed overseas, because American leadership around the world depends upon the example of American democracy and American openness—because what makes us different from other countries is not simply our ability to secure our nation, it’s the way we do it—with open debate and democratic process.
In other words, it’s not enough for me, as President, to have confidence in these programs. The American people need to have confidence in them as well. And that’s why, over the last few weeks, I’ve consulted members of Congress who come at this issue from many different perspectives. I’ve asked the Privacy and Civil Liberties Oversight Board to review where our counterterrorism efforts and our values come into tension, and I directed my national security team to be more transparent and to pursue reforms of our laws and practices.
And so, today, I’d like to discuss four specific steps—not all inclusive, but some specific steps that we’re going to be taking very shortly to move the debate forward.
First, I will work with Congress to pursue appropriate reforms to Section 215 of the Patriot Act—the program that collects telephone records. As I’ve said, this program is an important tool in our effort to disrupt terrorist plots. And it does not allow the government to listen to any phone calls without a warrant. But given the scale of this program, I understand the concerns of those who would worry that it could be subject to abuse. So after having a dialogue with members of Congress and civil libertarians, I believe that there are steps we can take to give the American people additional confidence that there are additional safeguards against abuse.
For instance, we can take steps to put in place greater oversight, greater transparency, and constraints on the use of this authority. So I look forward to working with Congress to meet those objectives.
Second, I’ll work with Congress to improve the public’s confidence in the oversight conducted by the Foreign Intelligence Surveillance Court, known as the FISC. The FISC was created by Congress to provide judicial review of certain intelligence activities so that a federal judge must find that our actions are consistent with the Constitution. However, to build greater confidence, I think we should consider some additional changes to the FISC.
One of the concerns that people raise is that a judge reviewing a request from the government to conduct programmatic surveillance only hears one side of the story—may tilt it too far in favor of security, may not pay enough attention to liberty. And while I’ve got confidence in the court and I think they’ve done a fine job, I think we can provide greater assurances that the court is looking at these issues from both perspectives—security and privacy.
So, specifically, we can take steps to make sure civil liberties concerns have an independent voice in appropriate cases by ensuring that the government’s position is challenged by an adversary.
Number three, we can, and must, be more transparent. So I’ve directed the intelligence community to make public as much information about these programs as possible. We’ve already declassified unprecedented information about the NSA, but we can go further. So at my direction, the Department of Justice will make public the legal rationale for the government’s collection activities under Section 215 of the Patriot Act. The NSA is taking steps to put in place a full-time civil liberties and privacy officer, and released information that details its mission, authorities, and oversight. And finally, the intelligence community is creating a website that will serve as a hub for further transparency, and this will give Americans and the world the ability to learn more about what our intelligence community does and what it doesn’t do, how it carries out its mission, and why it does so.
Fourth, we’re forming a high-level group of outside experts to review our entire intelligence and communications technologies. We need new thinking for a new era. We now have to unravel terrorist plots by finding a needle in the haystack of global telecommunications. And meanwhile, technology has given governments—including our own—unprecedented capability to monitor communications.
So I am tasking this independent group to step back and review our capabilities—particularly our surveillance technologies. And they’ll consider how we can maintain the trust of the people, how we can make sure that there absolutely is no abuse in terms of how these surveillance technologies are used, ask how surveillance impacts our foreign policy—particularly in an age when more and more information is becoming public. And they will provide an interim report in sixty days and a final report by the end of this year, so that we can move forward with a better understanding of how these programs impact our security, our privacy and our foreign policy.
So all these steps are designed to ensure that the American people can trust that our efforts are in line with our interests and our values. And to others around the world, I want to make clear once again that America is not interested in spying on ordinary people. Our intelligence is focused, above all, on finding the information that’s necessary to protect our people, and—in many cases—protect our allies.
It’s true we have significant capabilities. What’s also true is we show a restraint that many governments around the world don’t even think to do, refuse to show—and that includes, by the way, some of America’s most vocal critics. We shouldn’t forget the difference between the ability of our government to collect information online under strict guidelines and for narrow purposes, and the willingness of some other governments to throw their own citizens in prison for what they say online.
And let me close with one additional thought. The men and women of our intelligence community work every single day to keep us safe because they love this country and believe in our values. They’re patriots. And I believe that those who have lawfully raised their voices on behalf of privacy and civil liberties are also patriots who love our country and want it to live up to our highest ideals. So this is how we’re going to resolve our differences in the United States—through vigorous public debate, guided by our Constitution, with reverence for our history as a nation of laws, and with respect for the facts.
Statement by the National Security Agency on Missions, Authorities, Oversight and Partnerships, Washington, DC (August 9, 2013)
Source: National Security Agency
“That’s why, in the years to come, we will have to keep working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are. That means reviewing the authorities of law enforcement, so we can intercept new types of communication, but also build in privacy protections to prevent abuse.”
—President Obama, May 23, 2013
In his May 2013 address at the National Defense University, the President made clear that we, as a Government, need to review the surveillance authorities used by our law enforcement and intelligence community professionals so that we can collect information needed to keep us safe and ensure that we are undertaking the right kinds of privacy protections to prevent abuse. In the wake of recent unauthorized disclosures about some of our key intelligence collection programs, President Obama has directed that as much information as possible be made public, while mindful of the need to protect sources, methods and national security. Acting under the guidance, the Administration has provided enhanced transparency on, and engaged in robust public discussion about, key intelligence collection programs undertaken by the National Security Agency (NSA). This is important not only to foster the kind of debate the President has called for, but to correct inaccuracies that have appeared in the media and elsewhere. This document is a step in that process, and is aimed at providing a succinct description of NSA’s mission, authorities, oversight and partnerships.
After the al-Qa’ida attacks on the World Trade Center and the Pentagon, the 9/11 Commission found that the U.S. Government had failed to identify and connect the many “dots” of information that would have uncovered the planning and preparation for those attacks. We now know that 9/11 hijacker Khalid al-Midhar, who was on board American Airlines flight 77 that crashed into the Pentagon, resided in California for the first six months of 2000. While NSA had intercepted some of Midhar’s conversations with persons in an al-Qa’ida safe house in Yemen during that period, NSA did not have the U.S. phone number or any indication that the phone Midhar was using was located in San Diego. NSA did not have the tools or the database to search to identify these connections and share them with the FBI. Several programs were developed to address the U.S. Government’s need to connect the dots of information available to the intelligence community and to strengthen the coordination between foreign intelligence and domestic law enforcement agencies.
NSA is an element of the U.S. intelligence community charged with collecting and reporting intelligence for foreign intelligence and counterintelligence purposes. NSA performs this mission by engaging in the collection of “signals intelligence,” which, quite literally, is the production of foreign intelligence through the collection, processing, and analysis of communications or other data, passed or accessible by radio, wire, or other electromagnetic means. Every intelligence activity NSA undertakes is necessarily constrained to these central foreign intelligence and counterintelligence purposes. NSA’s challenge in an increasingly interconnected world—a world where our adversaries make use of the same communications systems and services as Americans and our allies—is to find and report on the communications of foreign intelligence value while respecting privacy and civil liberties. We do not need to sacrifice civil liberties for the sake of national security―both are integral to who we are as Americans. NSA can and will continue to conduct its operations in a manner that respects both. We strive to achieve this through a system that is carefully designed to be consistent with authorities and controls and enabled by capabilities that allow us to collect, analyze and reportintelligence needed to protect national security.
NSA’s mission is to help protect national security by providing policy makers and military commanders with the intelligence information they need to do their jobs. NSA’s priorities are driven by externally developed and validated intelligence requirements, provided to NSA by the President, his national security team, and their staffs through the National Intelligence Priorities Framework.
NSA Collection Authorities
NSA’s collection authorities stem from two key sources: Executive Order 12333 and the Foreign Intelligence Surveillance Act of 1978 (FISA).
Executive Order 12333
Executive Order 12333 is the foundational authority by which NSA collects, retains, analyzes and disseminates foreign signals intelligence information. The principal application of this authority is the collection of communications by foreign persons that occur wholly outside the United States. To the extent a person located outside the United States communicates with someone inside the United States or someone inside the United States communicates with a person located outside the United States those communications could also be collected. Collection pursuant to EO 12333 is conducted through various means around the globe, largely from outside the United States, which is not otherwise regulated by FISA. Intelligence activities conducted under this authority are carried out in accordance with minimization procedures established by the Secretary of Defense and approved by the Attorney General.
To undertake collections authorized by EO 12333, NSA uses a variety of methodologies. Regardless of the specific authority or collection source, NSA applies the process described below:
1. NSA identifies foreign entities (persons or organizations) that have information responsive to an identified foreign intelligence requirement. For instance, NSA works to identify individuals who may belong to a terrorist network.
2. NSA develops the “network” with which that person or organization’s information is shared or the command and control structure through which it flows. In other words, if NSA is tracking a specific terrorist, NSA will endeavor to determine who that person is in contact with, and who he is taking direction from.
3. NSA identifies how the foreign entities communicate (radio, email, telephony, etc.)
4. NSA then identifies the telecommunications infrastructure used to transmit those communications.
5. NSA identifies vulnerabilities in the methods of communication used to transmit them.
6. NSA matches its collection to those vulnerabilities, or develops new capabilities to acquire communications of interest if needed.
This process will often involve the collection of communications metadata—data that helps NSA understand where to find valid foreign intelligence information needed to protect U.S. national security interests in a large and complicated global network. For instance, the collection of overseas communications metadata associated with telephone calls—such as the telephone numbers, and time and duration of calls—allows NSA to map communications between terrorists and their associates. This strategy helps ensure that NSA’s collection of communications content is more precisely focused on only those targets necessary to respond to identified foreign intelligence requirements.
NSA uses EO 12333 authority to collect foreign intelligence from communications systems around the world. Due to the fragility of these sources, providing any significant detail outside of classified channels is damaging to national security. Nonetheless, every type of collection undergoes a strict oversight and compliance process internal to NSA that is conducted by entities within NSA other than those responsible for the actual collection.
FISA regulates certain types of foreign intelligence collection including certain collection that occurs with compelled assistance from U.S. telecommunications companies. Given the techniques that NSA must employ when conducting NSA’s foreign intelligence mission, NSA quite properly relies on FISA authorizations to acquire significant foreign intelligence information and will work with the FBI and other agencies to connect the dots between foreign-based actors and their activities in the U.S. The FISA Court plays an important role in helping to ensure that signals intelligence collection governed by FISA is conducted in conformity with the requirements of the statute. All three branches of the U.S. Government have responsibilities for programs conducted under FISA, and a key role of the FISA Court is to ensure that activities conducted pursuant to FISA authorizations are consistent with the statute, as well as the U.S. Constitution, including the Fourth Amendment.
FISA Section 702
Under Section 702 of the FISA, NSA is authorized to target non-U.S. persons who are reasonably believed to be located outside the United States. The principal application of this authority is in the collection of communications by foreign persons that utilize U.S. communications service providers. The United States is a principal hub in the world’s telecommunications system and FISA is designed to allow the U.S. Government to acquire foreign intelligence while protecting the civil liberties and privacy of Americans. In general, Section 702 authorizes the Attorney General and Director of National Intelligence to make and submit to the FISA Court written certifications for the purpose of acquiring foreign intelligence information. Upon the issuance of an order by the FISA Court approving such a certification and the use of targeting and minimization procedures, the Attorney General and Director of National Intelligence may jointly authorize for up to one year the targeting of non-United States persons reasonably believed to be located overseas to acquire foreign intelligence information. The collection is acquired through compelled assistance from relevant electronic communications service providers.
NSA provides specific identifiers (for example, email addresses, telephone numbers) used by non-U.S. persons overseas who the government believes possess, communicate, or are likely to receive foreign intelligence information authorized for collection under an approved certification. Once approved, those identifiers are used to select communications for acquisition. Service providers are compelled to assist NSA in acquiring the communications associated with those identifiers.
For a variety of reasons, including technical ones, the communications of U.S. persons are sometimes incidentally acquired in targeting the foreign entities. For example, a U.S. person might be courtesy copied on an email to or from a legitimate foreign target, or a person in the U.S. might be in contact with a known terrorist target. In those cases, minimization procedures adopted by the Attorney General in consultation with the Director of National Intelligence and approved by the Foreign Intelligence Surveillance Court are used to protect the privacy of the U.S. person. These minimization procedures control the acquisition, retention and dissemination of any U.S. person information incidentally acquired during operations conducted pursuant to Section 702.
The collection under FAA Section 702 is the most significant tool in the NSA collection arsenal for the detection, identification and disruption of terrorist threats to the U.S. and around the world. One notable example is the Najibullah Zazi case. In early September 2009, while monitoring the activities of al Qaeda terrorists in Pakistan, NSA noted contact from an individual in the U.S. that the FBI subsequently identified as Colorado-based Najibullah Zazi. The U.S. Intelligence Community, including the FBI and NSA, worked in concert to determine his relationship with al Qaeda, as well as identify any foreign or domestic terrorist links. The FBI tracked Zazi as he traveled to New York to meet with co-conspirators, where they were planning to conduct a terrorist attack. Zazi and his co-conspirators were subsequently arrested. Zazi pled guilty to conspiring to bomb the New York City subway system. The FAA Section 702 collection against foreign terrorists was critical to the discovery and disruption of this threat to the U.S.
FISA (Title I)
NSA relies on Title I of FISA to conduct electronic surveillance of foreign powers or their agents, to include members of international terrorist organizations. Except for certain narrow exceptions specified in FISA, a specific court order from the Foreign Intelligence Surveillance Court based on a showing of probable cause is required for this type of collection.
Collection of U.S. Person Data
There are three additional FISA authorities that NSA relies on, after gaining court approval, that involve the acquisition of communications, or information about communications, of U.S. persons for foreign intelligence purposes on which additional focus is appropriate. These are the Business Records FISA provision in Section 501 (also known by its section numbering within the PATRIOT Act as Section 215) and Sections 704 and 705(b) of the FISA.
Business Records FISA, Section 215
Under NSA’s Business Records FISA program (or BR FISA), first approved by the Foreign Intelligence Surveillance Court (FISC) in 2006 and subsequently reauthorized during two different Administrations, four different Congresses, and by fourteen federal judges, specified U.S. telecommunications providers are compelled by court order to provide NSA with information about telephone calls to, from, or within the U.S. The information is known as metadata, and consists of information such as the called and calling telephone numbers and the date, time, and duration of the call—but no user identification, content, or cell site locational data. The purpose of this particular collection is to identify the U.S. nexus of a foreign terrorist threat to the homeland.
The Government cannot conduct substantive queries of the bulk records for any purpose other than counterterrorism. Under the FISC orders authorizing the collection, authorized queries may only begin with an “identifier,” such as a telephone number, that is associated with one of the foreign terrorist organizations that was previously identified to and approved by the Court. An identifier used to commence a query of the data is referred to as a “seed.” Specifically, under Court-approved rules applicable to the program, there must be a “reasonable, articulable suspicion” that a seed identifier used to query the data for foreign intelligence purposes is associated with a particular foreign terrorist organization. When the seed identifier is reasonably believed to be used by a U.S. person, the suspicion of an association with a particular foreign terrorist organization cannot be based solely on activities protected by the First Amendment. The “reasonable, articulable suspicion” requirement protects against the indiscriminate querying of the collected data. Technical controls preclude NSA analysts from seeing any metadata unless it is the result of a query using an approved identifier.
The BR FISA program is used in cases where there is believed to be a threat to the homeland. Of the fifty-four terrorism events recently discussed in public, thirteen of them had a homeland nexus, and in twelve of those cases, BR FISA played a role. Every search into the BR FISA database is auditable and all three branches of our government exercise oversight over NSA’s use of this authority.
FISA Sections 704 and 705(b)
FISA Section 704 authorizes the targeting of a U.S. person outside the U.S. for foreign intelligence purposes if there is probable cause to believe the U.S. person is a foreign power or is an officer, employee, or agent of a foreign power. This requires a specific, individual court order by the Foreign Intelligence Surveillance Court. The collection must be conducted using techniques not otherwise regulated by FISA.
Section 705(b) permits the Attorney General to approve similar collection against a U.S. person who is already the subject of a FISA court order obtained pursuant to Section 105 or 304 of FISA. The probable cause standard has, in these cases, already been met through the FISA court order process.
The Essential Role of Corporate Communications Providers
Under all FISA and FAA programs, the government compels one or more providers to assist NSA with the collection of information responsive to the foreign intelligence need. The government employs cover names to describe its collection by source. Some that have been revealed in the press recently include FAIRVIEW, BLARNEY, OAKSTAR, and LITHIUM. While some have tried to characterize the involvement of such providers as separate programs, that is not accurate. The role of providers compelled to provide assistance by the FISC is identified separately by the Government as a specific facet of the lawful collection activity.
The Essential Role of Foreign Partners
NSA partners with well over thirty different nations in order to conduct its foreign intelligence mission. In every case, NSA does not and will not use a relationship with a foreign intelligence service to ask that service to do what NSA is itself prohibited by law from doing. These partnerships are an important part of the U.S. and allied defense against terrorists, cyber threat actors, and others who threaten our individual and collective security. Both parties to these relationships benefit.
One of the most successful sets of international partnerships for signals intelligence is the coalition that NSA developed to support U.S. and allied troops in Iraq and Afghanistan. The combined efforts of as many as fourteen nations provided signals intelligence support that saved U.S. and allied lives by helping to identify and neutralize extremist threats across the breadth of both battlefields. The senior U.S. commander in Iraq credited signals intelligence with being a prime reason for the significant progress made by U.S. troops in the 2008 surge, directly enabling the removal of almost 4,000 insurgents from the battlefield.
The Oversight and Compliance Framework
NSA has an internal oversight and compliance framework to provide assurance that NSA’s activities—its people, its technology and its operations—act consistently with the law and with NSA and U.S. intelligence community policies and procedures. This framework is overseen by multiple organizations external to NSA, including the Director of National Intelligence, the Attorney General, the Congress, and for activities regulated by FISA, the Foreign Intelligence Surveillance Court.
NSA has had different minimization procedures for different types of collection for decades. Among other things, NSA’s minimization procedures, to include procedures implemented by United States Signals Intelligence Directive No. SP0018 (USSID 18), provide detailed instructions to NSA personnel on how to handle incidentally acquired U.S. person information. The minimization procedures reflect the reality that U.S. communications flow over the same communications channels that foreign intelligence targets use, and that foreign intelligence targets often discuss information concerning U.S. persons, such as U.S. persons who may be the intended victims of a planned terrorist attack. Minimization procedures direct NSA on the proper way to treat information at all stages of the foreign intelligence process in order to protect U.S. persons’ privacy interests.
In 2009 NSA stood up a formal Director of Compliance position, affirmed by Congress in the FY2010 Intelligence Authorization Bill, which monitors verifiable consistency with laws and policies designed to protect U.S. person information during the conduct of NSA’s mission. The program managed by the Director of Compliance builds on a number of previous efforts at NSA, and leverages best practices from the professional compliance community in industry and elsewhere in the government. Compliance at NSA is overseen internally by the NSA Inspector General and is also overseen by a number of organizations external to NSA, including the Department of Justice, the Office of the Director of National Intelligence, and the Assistant Secretary of Defense for Intelligence Oversight, the Congress, and the Foreign Intelligence Surveillance Court.
In addition to NSA’s compliance safeguards, NSA personnel are obliged to report when they believe NSA is not, or may not be, acting consistently with law, policy, or procedure. This self reporting is part of the culture and fabric of NSA. If NSA is not acting in accordance with law, policy, or procedure, NSA will report through its internal and external intelligence oversight channels, conduct reviews to understand the root cause, and make appropriate adjustments to constantly improve.
Extract of Speech by Brazilian President Dilma Rousseff to the 68th Session of the United National General Assembly, New York (September 24, 2013)
Source: Permanent Mission of Brazil to the United Nations
Ambassador John Ashe, president of the 68th session of the United Nations General Assembly, Mr. Ban Ki-moon, Secretary-General of the United Nations, Heads of State and Government, Ladies and Gentlemen.
Allow me initially to express my satisfaction in having a renowned representative of Antigua and Barbuda—a country that is part of the Caribbean, which is so cherished in Brazil and in our region―to conduct the work of this session of the General Assembly.
You can count, Excellency, on the permanent support of my Government.
Allow me also, at the beginning of my intervention, to express the repudiation of the Brazilian Government and people to the terrorist attack that took place in Nairobi. I express our condolences and our solidarity to the families of the victims, the people and the Government of Kenya.
Terrorism, wherever it may occur and regardless of its origin, will always deserve our unequivocal condemnation and our firm resolve to fight against it. We will never give way to barbarity.
Mr. President, I would like to bring to the consideration of delegations a matter of great importance and gravity.
Recent revelations concerning the activities of a global network of electronic espionage have caused indignation and repudiation in public opinion around the world.
In Brazil, the situation was even more serious, as it emerged that we were targeted by this intrusion. Personal data of citizens was intercepted indiscriminately. Corporate information―often of high economic and even strategic value―was at the center of espionage activity. Also, Brazilian diplomatic missions, among them the Permanent Mission to the United Nations and the Office of the President of the Republic itself, had their communications intercepted.
Tampering in such a manner in the affairs of other countries is a breach of International Law and is an affront to the principles that must guide the relations among them, especially among friendly nations. A sovereign nation can never establish itself to the detriment of another sovereign nation. The right to safety of citizens of one country can never be guaranteed by violating fundamental human rights of citizens of another country. The arguments that the illegal interception of information and data aims at protecting nations against terrorism cannot be sustained.
Brazil, Mr. President, knows how to protect itself. We reject, fight and do not harbor terrorist groups.
We are a democratic country surrounded by nations that are democratic, pacific and respectful of International Law. We have lived in peace with our neighbors for more than 140 years.
As many other Latin Americans, I fought against authoritarianism and censorship, and I cannot but defend, in an uncompromising fashion, the right to privacy of individuals and the sovereignty of my country. In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy. In the absence of the respect for sovereignty, there is no basis for the relationship among Nations.
We face, Mr. President, a situation of grave violation of human rights and of civil liberties; of invasion and capture of confidential information concerning corporate activities, and especially of disrespect to national sovereignty.
We expressed to the Government of the United States our disapproval, and demanded explanations, apologies and guarantees that such procedures will never be repeated.
Friendly governments and societies that seek to build a true strategic partnership, as in our case, cannot allow recurring illegal actions to take place as if they were normal. They are unacceptable.
Brazil, Mr. President, will redouble its efforts to adopt legislation, technologies and mechanisms to protect us from the illegal interception of communications and data.
My Government will do everything within its reach to defend the human rights of all Brazilians and to protect the fruits borne from the ingenuity of our workers and our companies.
The problem, however, goes beyond a bilateral relationship. It affects the international community itself and demands a response from it. Information and telecommunication technologies cannot be the new battlefield between States. Time is ripe to create the conditions to prevent cyberspace from being used as a weapon of war, through espionage, sabotage, and attacks against systems and infrastructure of other countries.
The United Nations must play a leading role in the effort to regulate the conduct of States with regard to these technologies.
For this reason, Brazil will present proposals for the establishment of a civilian multilateral framework for the governance and use of the Internet and to ensure the effective protection of data that travels through the web.
We need to create multilateral mechanisms for the worldwide network that are capable of ensuring principles such as:
1. Freedom of expression, privacy of the individual and respect for human rights.
2. Open, multilateral and democratic governance, carried out with transparency by stimulating collective creativity and the participation of society, Governments and the private sector.
3. Universality that ensures the social and human development and the construction of inclusive and non-discriminatory societies.
4. Cultural diversity, without the imposition of beliefs, customs and values.
5. Neutrality of the network, guided only by technical and ethical criteria, rendering it inadmissible to restrict it for political, commercial, religious or any other purposes.
Harnessing the full potential of the Internet requires, therefore, responsible regulation, which ensures at the same time freedom of expression, security and respect for human rights.
Opening Statement of General Keith B. Alexander, Director, National Security Agency, to the Senate Committee on the Judiciary, Washington, DC (October 2, 2013)
Source: United States Senate Committee on the Judiciary
Chairman Leahy, Ranking Member Grassley, distinguished members of the Committee, thank you for the opportunity to provide opening remarks.
I am privileged today to represent the work of the dedicated professionals at the National Security Agency who employ the authorities provided by Congress, the federal courts and the Executive Branch to help protect the nation and protect our civil liberties and privacy.
If we are to have an honest debate about how NSA conducts its business, we need to step away from sensationalized headlines and focus on facts.
Our mission is to defend the nation and to protect our civil liberties and privacy. Ben Wittes from the Brookings Institution said about the media leaks and specifically about these two FISA programs: “shameful as it is that these documents were leaked, they actually should give the public great confidence in both NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the Agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA. And they show an earnest, ongoing dialogue with the FISA court over the parameters of the Agency’s legal authority and a commitment both to keeping the court informed of activities and to complying with its judgments on their legality.”
Today I’d like to present facts to specifically address:
- Who we are in terms of both our mission and our people;
- What we do: adapt to technology and the threat; take direction from political leadership; operate strictly within the law and consistent with explicit intelligence priorities; and ensure compliance with all constraints imposed by our authorities and internal procedures;
- What we have accomplished specifically for our country with the tools we have been authorized; and
- Where do we go from here?
Who We Are—Our Mission
NSA is a foreign intelligence agency with two missions:
- We collect foreign intelligence of national security interest and
- We protect certain sensitive information and U.S. networks.
- All this while protecting our civil liberties.
NSA contributes to the security of our nation, its armed forces, and our allies. NSA accomplishes this mission, while protecting civil liberties and privacy―because the constitution we are sworn to protect and defend makes no allowances to trade one for the other. NSA operates squarely within the authorities granted by the president, congress and the courts.
Who We Are—Our People
I’m proud of what NSA does and more proud of our people:
- National Security Agency employees take an oath to protect and defend the constitution of the United States of America.
- They have devoted themselves to protecting our nation.
- Just like you, they will never forget the moment terrorists killed 2,996 Americans in New York, Pennsylvania and the Pentagon.
- They witnessed the first responders’ efforts to save lives. They saw the military shift to a wartime footing. They committed themselves to ensuring that another 9/11 would not happen and our deployed forces would return home safely.
- In fact, they deploy with our armed forces into areas of hostility. More than 6,000 deployed in support of operations in Iraq, Afghanistan and CT. Twenty-two paid the ultimate sacrifice since 9/11; sadly adding to a list of NSA/CSS personnel numbering over 170 killed in the line of duty since NSA’s formation in 1952. Theirs is a noble cause.
- NSA prides itself on its highly skilled workforce.
- We are the largest employer of mathematicians in the U.S. (1,013).
- 966 PhDs and 4,374 computer scientists.
- Linguists in more than 120 languages.
- More patents than any other Intelligence Community agency and most businesses.
- They are also Americans and they take their privacy and civil liberties seriously.
What We Do—Adapt to Technology and the Threat
Today’s telecommunications system is literally one of the most complex systems ever devised by mankind. The fact that over 2.5 billion people all connect and communicate across a common infrastructure is a tribute to the ingenuity of mankind. The stark reality is that terrorists, criminals and adversaries make use of the same infrastructure.
Terrorists and other foreign adversaries hide in the same global network, use the same communications networks as everyone else, and take advantage of familiar services: Gmail, Facebook, Twitter, etc. Technology has made it easy for them.
We must develop and apply the best analytic tools to succeed at our mission; finding the communications of adversaries while protecting those of innocent people, regardless of their nationality.
What We Do—Take Direction from Political Leadership (NIPF)
NSA’s direction comes from national security needs, as defined by the nation’s senior leaders.
NSA does not decide what topics to collect and analyze. NSA’s collection and analysis is driven by the national intelligence priorities framework and received in formal tasking.
We do understand that electronic surveillance capabilities are powerful tools in the hands of the state. That’s why we have extensive mandatory internal training, automated checks, and an extensive regime of both internal and external oversight.
What We Do—Use Lawful Programs and Tools to Do Our Mission
The authorities we have been granted and the capabilities we have developed help keep our nation safe. Since 9/11 we have disrupted terrorist attacks at home and abroad using capabilities informed by the lessons of 9/11. The Business Records FISA program, NSA’s implementation of Section 215 of the PATRIOT Act, focuses on defending the homeland by linking the foreign and domestic threats.
Section 702 of FISA focuses on acquiring foreign intelligence, including critical information concerning international terrorist organizations, by targeting non-U.S. persons who are reasonably believed to be located outside the United States. NSA also operates under other sections of the FISA statute in accordance with the law’s provisions (such as Title 1 and Section 704).
It is important to remember that in order to target a U.S. person anywhere in the world under the FISA statute, we are required to obtain a court order based on a probable cause showing that the prospective target of the surveillance is a foreign power or agent of a foreign power.
NSA conducts the majority of its SIGINT activities solely pursuant to the authority provided by Executive Order (EO) 12333.
As I have said before, these authorities and capabilities are powerful; we take this responsibility seriously.
What We Do—Ensure Compliance
We stood up a Director of Compliance in 2009 and repeatedly train our entire workforce in privacy protections and the proper use of capabilities.
We do make mistakes. The vast majority of compliance incidents reflect the challenge of implementing very specific rules in the context of ever-changing technology. Compliance incidents, with very rare exception, are unintentional and reflect the sort of errors that will occur in any complex system of technical activity.
The press claimed evidence of “thousands of privacy violations.” This is false and misleading. According to NSA’s independent Inspector General, there have been only twelve substantiated cases of willful violation over ten years – essentially one per year from a population of NSA/CSS personnel numbering in the tens of thousands. But the relatively small number of cases does not excuse any infraction of the rules. We took action in every case referring several to the Department of Justice for potential prosecution; appropriate disciplinary action was taken in others.
We hold ourselves accountable every day. Most of these cases involved improper tasking or querying regarding foreign persons in foreign places. I am not aware of any intentional or willful violations of the FISA statute, which is designed to be most protective of the privacy interests of U.S. persons. Of the 2,776 incidents noted in the press from one of our leaked annual compliance reports, about 75% are not violations of approved procedures at all but rather NSA’s detection of valid foreign targets that travel to the U.S. and a record that NSA stopped collecting, in accordance with the rules (roamers).
Let me also start to clear the air on actual compliance incidents. The vast majority of the actual compliance incidents involve foreign locations and foreign activities, as our activities are regulated by specific rules wherever they occur. For the smaller number that did involve a U.S. person, a typical incident involves a person overseas involved with a foreign organization who is subsequently determined to be a U.S. person. All initial indications and research before collection point the other way, but NSA constantly re-evaluates indications.
NSA detects and corrects and—in most cases—does so before any information is even obtained, used, or shared outside of NSA. Despite the difference, between willful and not, we treat incidents the same: we detect, we address, we remediate—including removing or purging information from our databases in accordance with the rules. And we report. We hold ourselves accountable and keep others informed so they can do the same.
On NSA’s compliance regime Ben Wittes said at last Thursday’s Intelligence Committee hearing: “but one thing we have learned an enormous amount about is the compliance procedures that NSA uses. They are remarkable. They are detailed. They produce data streams that are extremely telling—and, to my mind, deeply reassuring.”( September 26)
We welcome an ongoing discussion about how the public can, going forward, have increased information about NSA’s compliance program and its compliance posture, much the same way all three branches of the government have today. From our perspective, additional measures that will increase the public’s confidence in these authorities and our use of them can and should be open for discussion.
What We have Accomplished for Our Country
NSA’s existing authorities and programs have helped “connect the dots,” working with the broader Intelligence Community and homeland and domestic security organizations, for the good of the nation and its people.
NSA’s programs have contributed to understanding and disrupting fifty-four terror related events: twenty-five in Europe, eleven in Asia, five in Africa, and thirteen related to the homeland. This was no accident nor coincidence. These were direct results of a dedicated workforce, appropriate policy, and well-scoped authorities created in the wake of 9/11 to make sure 9/11 never happened again.
This is not the case in other countries. In the week ending September 23 there were 972 terror-related deaths in Kenya, Pakistan, Afghanistan, Syria, Yemen and Iraq. [Kenya, 62; Pakistan, 75; Afghanistan, 18; Syria, 504; Yemen, 50; and Iraq, 263]. Another 1,030 were injured in the same countries.
We need these types of programs to protect against having these types of statistics on our soil. NSA’s global system is optimized for today’s technology on a global network. Our analytic tools are effective at finding terrorist communications in time to make a difference. This global system and analytic tools are also what we need for cybersecurity. This is how we see in cyberspace, identify threats there, and defend networks.
On August 9 the President laid out some specific steps to increase the confidence of the American people in our foreign intelligence collection programs.
We are always looking for ways to better protect privacy and security. We have improved over time our ability to reconcile our technology with our operations and with the rules and authorities. We will continue to do so as we go forward and strive to improve how we protect the American people—their privacy and security.
Regarding NSA’s telephone metadata program, policy makers across the Executive and Legislative Branches will ultimately decide whether we want to sustain or dispense with a tool designed to detect terrorist plots across the seam between foreign and domestic domains. Different implementations of the program can address the need, but each should be scored against several key attributes:
- Privacy: privacy and civil liberties are protected.
- Agility: queries can be made in a timely manner so that, in the most urgent cases, results can support disruption of imminent terrorist plots.
- Duration: terrorist planning can extend for years, so the metadata repository must extend back for some period of time in order to discover terrorist plans and disrupt plots.
- Breadth: repository of metadata is comprehensive enough to ensure query responses can indicate with high confidence any connections a terrorist-associated number may have to other persons who may be engaged in terrorist activities. As you consider changes in metadata storage location, length of storage, who approves query terms and the number of hops, we must preserve these foundational attributes of BR FISA.
Similarly as you entertain reforms to the FISC, operational and practical considerations must be weighed so that there are no inherent delays; emergency provisions are maintained; and any reform to the FISC structure is respectful of the nature of classified information.
NSA looks forward to supporting the discussion of reforms. Whatever changes are made, we will exercise our authorities dutifully, just as we have always done.
The leaks of classified NSA and partner information will change how we operate and what people know about us. However, the leaks will not change the ethos of the NSA workforce, which is dedicated to finding and reporting the vital intelligence our customers need to keep the nation safe, in a manner that is fully compliant with the laws and rules that authorize and limit NSA’s activities and sustain the privacy protections that we as a nation enjoy.
I look forward to answering your questions.
Keeping Hope Alive
For so long, Egyptians were complacent and passive. They were described by many historians and scholars, such as Nazih Ayubi, of the University of Exeter, and Gamal Hamdan, author of The Personality of Egypt, as a tolerant, risk-averse people who loved settling down in their agrarian communities beside the Nile.
Egyptians, as the world knows, are no longer settling down. In 2011, they rose up in the January 25 Revolution to end the thirty-year rule of President Hosni Mubarak. Another wave of the Revolution erupted last June 30, due to the failed governing practices and the alienating policies of Mubarak’s successor, Mohammed Morsi. Millions took to the streets once again, declaring their opposition to Muslim Brotherhood rule and calling for expedited presidential elections.
After just a few days, the armed forces intervened and declared its support for the people’s demands. For the second time in less than three years, an Egyptian ruler was ousted and placed in prison. The military called on the head of the Supreme Constitutional Court to step in as interim president. Overthrowing a government that was headed by the first democratically elected president, and the configuration of another, did not occur smoothly. Strong resistance by Muslim Brotherhood supporters and by proponents of political Islam resulted in demonstrations and strikes all over Egypt. The turmoil reached a tragic peak when security forces cleared demonstrators from the Rabaa El-Adawiya and Nahda square protests in Cairo, resulting in hundreds of deaths and injuries.
These events led to a long debate about whether what happened was a new Revolution, a second wave of the Revolution, or a military coup d’etat. Different political scientists, historians, international experts and even foreign governments took sides with either one view or the other. Even within Egyptian families, brothers and sisters, cousins and siblings stopped speaking to one another, as proponents of opposing views stuck to their side of the puzzling struggle. Only a few, it seems, managed to come to an understanding that it is not ‘either/or,’ and that perhaps we need to add new terms and concepts to our political science dictionaries.
When there are massive citizen movements and demands, which are then supported by the armed forces and lead in turn to a civilian government, it may be a new phenomenon. Only time will tell how the story will unfold, and only history—depending on who gets to write the history books—will perhaps reveal the true intentions of the different parties involved.
At present, what is of major concern to the Egyptian citizen is a need to realize the January 25 demands for better quality of life, freedom, human dignity and social justice. People on the street, who may not be politicized, are worried about the rising inflation rate, the difficulty of finding a job, the deteriorating health and educational services, and the general difficulty of making ends meet.
There are two main prerequisites for achieving the demands of the Revolution: first, security on the streets, and second, the ability to listen to one another, accept differences in opinions and reach a compromise for the common good. The two prerequisites are interrelated and overlapping. If we cannot have dialogue, if we cannot talk to one another and we remain polarized, then violence and lack of security will predominate, and vice versa. With more violence, people become even more polarized, and the security situation deteriorates with negative ramifications on the economic situation and citizens’ quality of life.
This is not a preacher’s call for peace and harmony, but rather a note that we need to deal with the root causes of our problems and come up with sustainable solutions for the benefit of all. Undoubtedly, this will require a reconciliation process, perhaps one that is unique to Egypt and its circumstances. But there are models that are worth examining.
After its long history of apartheid and racial injustice, South Africa established a reconciliation process that worked on integrating all society members, black and white, oppressors and oppressed. The process incorporated many elements and was by no means assured of success. A key factor was the high quality of leadership exhibited by principal figures, notably Nelson Mandela, leader of the African National Congress, and F.W. De Klerk, the white president who opened the door to a democratic transition by releasing Mandela from prison. Other important elements were the inclusion of all major parties in negotiations for a new constitution, and the commitment of these groups to the rule of law during the political transition. The Truth and Reconciliation Commission established in 1995 after the abolition of apartheid rule required the transgressors who were proven guilty, and who confessed to their crimes and transgressions, to request amnesty in a public hearing.
No system is perfect, but if the South Africans have succeeded to a large extent in overcoming such a major hurdle in their transition to democracy, why can’t Egyptians? It does not have to be a replica of other countries’ experiences, but we can come up with our own mechanism for airing grievances, ensuring transparency and implementing transitional justice. The goal is a greater degree of democracy and the protection of the society’s cohesion. We remain hopeful for a better future.
Laila El Baradei is the acting dean of the School of Global Affairs and Public Policy at the American University in Cairo.