Peter Berkowitz

Peter Berkowitz

Tad and Dianne Taube Senior Fellow Peter Berkowitz is an expert on classical and contemporary liberalism, American constitutionalism, and the Middle East. He authored Virtue and the Making of Modern Liberalism and Nietzsche: The Ethics of an Immoralist. He also edited, among other books, Terrorism, the Laws of War, and the Constitution: Debating the Enemy Combatant Cases. He chairs the Jean Perkins Task Force on National Security and Law and cochairs the Boyd and Jill Smith Task Force on Virtues of a Free Society.

 

Edward Snowden’s theft of massive numbers of National Security Agency (NSA) documents — the Pentagon estimates he copied 1.7 million intelligence files — and the distribution of those documents to journalists who have sporadically published them has damaged American national security interests around the world by delivering to our adversaries sensitive secrets about US intelligence and military operations. The means by which the NSA collects intelligence have been seriously compromised as have been the numerous relationships on which that collection depends, all to the serious detriment of our security.

So far the pilfered documents have not exposed substantial instances of unlawful conduct by the United States government. Nevertheless, much of the public controversy sparked by the revelations about America’s extensive electronic surveillance has revolved around allegations of government wrongdoing.

In fact, it was no secret that the United States government, partly in response to the threat of transnational terrorism, has for many years engaged in the collection of enormous amounts of information about telephone calls within the United States, calls between the United States and other countries, and calls entirely outside the United States, and that the government has been mining the data. It had also been reported, though never officially confirmed, that the government was collecting and mining enormous amounts of data concerning email traffic that passes through the United States.

Less well understood are the complex laws, procedures, and oversight mechanisms that the United States has adopted to protect citizens’ privacy while culling from its vast pool of digital data only information relevant to the nation’s security. To be sure, in an age in which the size, scope, and kind of data are increasing with astonishing speed, those procedures are far from perfect and are in need of regular review and constant refinement.  Our constitutional tradition, moreover, teaches the importance of unceasing vigilance whenever the government exercises power, especially when it does so in secret. The vital national security interests served by electronic surveillance do not lessen the concern about the potential abuse of government power.

In this edition of The Briefing, members of the Hoover Institution’s Jean Perkins Task Force on National Security and Law deftly explore the complex considerations — technological, legal, political, and strategic — that should inform government’s ability to conduct electronic surveillance and keep secrets while protecting citizens’ rights and ensuring democratic accountability.

My colleagues provide no easy answers.  They do bring into focus the hard issues involved in reconciling the claims of security and of law in a dangerous and digital age.

Berkowitz’s piece is the first in a series of nine essays to be published over the next week and a half. Return to the Briefing daily for new insights from Benjamin Wittes, Jack Goldsmith, Matthew Waxman, Jessica SternShavit Matias, Tod Lindbergh, Ruth Wedgwood, Philip Bobbit, and Kenneth Anderson focusing on intelligence gathering in a digital age.

Peter Berkowitz is the Tad and Dianne Taube Senior Fellow at the Hoover Institution, Stanford University, where he chairs the Jean Perkins Task Force on National Security and Law.

The Briefing, Part II

 

On May 23, President Obama gave the first major speech on national security of his second term.  His purpose was to review his administration’s achievements in dealing with the war that al Qaeda launched against the United States on Sept. 11, 2001; to lay out a second term agenda to combat the transnational terrorists who continue to pursue violent jihad against the United States; and to acknowledge where his administration has fallen short.

The president covered considerable ground.  He affirmed his commitment to bedrock constitutional principles in waging war and preserving peace.  He recognized that the Sept. 11 attacks reflected an untraditional kind of war, conducted by terrorists who do not fight in uniform and who attack civilians and civilian infrastructure.  He stressed our success in degrading al Qaeda in Afghanistan even as he recognized that al Qaeda branches and offshoots have sprung up throughout the Arab world and continue to represent a serious threat.  He announced his determination to formulate a “comprehensive counterterrorism strategy,” which would involve targeted action including the use of drones; expansion of partnerships with friends and allies; and enhancement of diplomatic activities including the prudent use of foreign aid to promote democratic transitions, bolster security, feed the hungry, and improve education.  He declared that it was America’s policy to work with the Muslim-American community to identify radicalization early and intervene to prevent the production of homegrown terrorists.  And in a significant if understated change from his days as a senator when he repeatedly contended in criticism of the Bush administration that there was no tension between our security and our values, the president soberly proclaimed that “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.”

The president also expressed regret that he has been unable to close the detention facility at Guantanamo Bay, Cuba.  Despite the executive order he issued on January 22, 2009, two days after his inauguration, directing that the facility be shuttered within a year, there is no obvious end in sight to its operation as a holding site for transnational terrorists who are too dangerous to release but cannot be prosecuted effectively in American courts.

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As Barack Obama begins his second term as president of the United States, the nation confronts a range of formidable challenges at the intersection of national security and law.  Some challenges involve the inadequacies of both the existing criminal law and the contemporary laws of war to deal with transnational terrorists who are neither criminals nor lawful combatants but partake of aspects of both. Some involve the development of technologies of mass empowerment and mass destruction.  Some involve the proper interpretation of the Constitution and the best division of national security responsibilities among the legislative, executive, and judicial branches of the federal government, and the departments and entities within them.  Some involve understanding the ideas that motivate our adversaries.  Some involve the application of the international laws of war to complex conflicts abroad.  Some involve the changing character of the nation-state.  And some challenges involve several or all of these aspects at the same time.

In the essays that follow, members of the Hoover Institution’s Task Force on National Security and Law address several of the challenges with which the Obama administration and administrations before it have wrestled and with which the Obama administration and administrations that follow it will continue to grapple.  We do not pretend to agree on a solution or set of solutions. But we do agree on the nature of the problem.  And we are proud to share a defining sensibility.

The task force’s sensibility is defined in the first place by the conviction that questions of security and questions of law are increasingly intertwined and that the Constitution provides a sturdy and flexible framework that enables the nation to provide for its defense while securing citizens’ rights and respecting international law.  Our sensibility is also characterized by a clear recognition that the rise of transnational terrorism; the proliferation of increasingly inexpensive, mobile, and devastatingly destructive weapons; and the diffusion of power from nation states to international bodies and transnational organizations at one end of the spectrum, and to enterprising individuals at the other end, have generated novel and difficult questions of strategy and law.  It is marked by an acute awareness that war has increasingly come under the supervision of law, and that law has increasingly been employed as a weapon of war.   And it is committed to responding to the use and abuse of domestic and international law in the realm of national security by means of precise analysis, careful criticism, and prudent reform.

Such a sensibility, we believe, is crucial to advancing the nation’s interest in dealing effectively and lawfully with the daunting security threats it confronts.

A Boot Camp for Citizenship

America’s crisis of civic education is acute, requiring a major change in the way students are taught about the workings of American government and the rights and responsibilities of citizenship. So contends David Feith, an opinion editor at the Wall Street Journal, in his introduction to Teaching America, a well-crafted collection of essays from a distinguished and diverse group of authors—progressives and conservatives, policy makers and professors, jurists and political commentators.

The case for civic education—what might have been called “civics” in an earlier generation—is straightforward. Just as, say, doctors who receive defective medical training will be handicapped in the performance of their professional tasks, so too citizens whose civic education is lacking will be less than competent as members of an extended political community. Studying the Constitution—not to mention American political ideas and institutions—can help us all to exercise our rights, respect the rights of others, and weigh the merit of contending policies. More generally, as Feith notes, civic education can nourish a common culture by showing that partisan disputes often reflect conflicting interpretations of a shared commitment to freedom and equality.

Continue reading Peter Berkowitz…

The politicization of higher education by activist professors and compliant university administrators deprives students of the opportunity to acquire knowledge and refine their minds. It also erodes the nation’s civic cohesion and its ability to preserve the institutions that undergird democracy in America.

So argues "A Crisis of Competence: The Corrupting Effect of Political Activism in the University of California," a new report by the California Association of Scholars, a division of the National Association of Scholars (NAS). The report is addressed to the Regents of the University of California, which has ultimate responsibility for governing the UC system, but the pathologies it diagnoses prevail throughout the country.

The analysis begins from a nonpolitical fact: Numerous studies of both the UC system and of higher education nationwide demonstrate that students who graduate from college are increasingly ignorant of history and literature. They are unfamiliar with the principles of American constitutional government. And they are bereft of the skills necessary to comprehend serious books and effectively marshal evidence and argument in written work.

This decline in the quality of education coincides with a profound transformation of the college curriculum. None of the nine general campuses in the UC system requires students to study the history and institutions of the United States. None requires students to study Western civilization, and on seven of the nine UC campuses, including Berkeley, a survey course in Western civilization is not even offered. In several English departments one can graduate without taking a course in Shakespeare. In many political science departments majors need not take a course in American politics.

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Reconsidering the Arab Spring

President Obama entered the White House determined to overcome what he and his supporters regarded as the Bush administration’s poisonous legacy in the Middle East. And yet, though loath to acknowledge it, since the advent of the Arab Spring in Tunisia in December 2010 and January 2011 and its rapid spread throughout the region, the Obama administration has been struggling to formulate and implement its own version of the Bush Doctrine, according to which it is in the interest of the United States to promote freedom and democracy in the Arab world.

This unacknowledged reversal came at a time in which the president’s major policy initiatives in the Middle East were in disarray, in significant measure because they were ill-conceived and clumsily executed. Touting engagement with the Iranians, Obama’s smart diplomacy went nowhere. Tehran mocked him, flouting deadline after deadline set by the president for ensuring that Iran’s nuclear program was limited to civilian purposes by subjecting it to international supervision. And while the United States was reduced to silently observing the carnage, Iran brutally suppressed large public demonstrations against the corrupt presidential elections of June 2009. Having lost two years in fruitless efforts to sweet talk the Iranians, the Obama administration has over the last year expanded and intensified sanctions imposed by the Bush administration. By the president’s own secretary of defense’s estimates, Iran is on a path to developing the capacity to make a nuclear weapon within a year.

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Boot Camp for Citizens

America’s crisis of civic education is acute, requiring a major change in the way students are taught about the workings of American government and the rights and responsibilities of citizenship. So contends David Feith, an opinion editor at The Wall Street Journal, in his introduction to "Teaching America," a well-crafted collection of essays from a distinguished and diverse group of authors—progressives and conservatives, policy makers and professors, jurists and political commentators.

The case for civic education—what might have been called "civics" in an earlier generation—is straightforward. Just as, say, doctors who receive defective medical training will be handicapped in the performance of their professional tasks, so too citizens whose civic education is lacking will be less than competent as members of an extended political community. Studying the Constitution—not to mention American political ideas and institutions—can help us all to exercise our rights and respect the rights of others and to weigh the merit of contending policies. More generally, as Mr. Feith notes, civic education can nourish a common culture by showing that partisan disputes often reflect conflicting interpretations of a shared commitment to freedom and equality.

Continue reading Peter Berkowitz…

The Importance of Experience

After the inglorious defeat of his cross country campaign to win passage of his second stimulus bill in the Democratic Party controlled Senate, only diehard supporters still share President Obama’s apparently unshaken confidence in his speech-making prowess. But it would be a mistake to dwell on his followers’ idolization and the president’s vanity.

Obama seems to believe that the soaring rhetoric that propelled him to the presidency supplies a way of governing that offsets his stunning lack of executive experience. Fawning admirers reinforce the illusion. But the illusion stems from the progressive academy from which the president emerged.

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(photo credit: The White House)

The Myth of Conservative Purity

With the opening of the fall political season and tonight’s Republican candidate debate, expect influential conservative voices to clamor for fellow conservatives to set aside half-measures, eschew conciliation, and adhere to conservative principle in its pristine purity. But what does fidelity to conservatism’s core convictions mean?

Superstar radio talk-show host Rush Limbaugh has, with characteristic bravado, championed a take-no-prisoners approach. In late July, as the debt-ceiling debate built to its climax, he understandably exhorted House Speaker John Boehner to stand strong and rightly praised the tea party for “putting country before party.” But then Mr. Limbaugh went further. “Winners do not compromise,” he declared on air. “Winners do not compromise with themselves. The winners who do compromise are winners who still don’t believe in themselves as winners, who still think of themselves as losers.”

We saw the results of such thinking in November 2010, when Christine O’Donnell was defeated by Chris Coons in Delaware in the race for Vice President Joe Biden’s vacated Senate seat. In Nevada Sharron Angle was defeated by Harry Reid, who was returned to Washington to reclaim his position as Senate majority leader. In both cases, the Republican senatorial candidate was a tea party favorite who lost a very winnable election.

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