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Crypto and the Second Amendment

In the Crypto Wars, arguments have occasionally been made that there is a constitutional right to cryptography. Most recently, Apple made that argument in trying to fend off the FBI’s request to help break into an encrypted phone. It went roughly as follows: writing code is an expressive act, freedom of expression is protected by the First Amendment, and so they can’t be forced to express themselves in ways they don’t want.

I don’t think this argument would have fared well in the courts. Corporations (and individuals) are regularly forced to express themselves in ways they don’t want. Enviromental regulations force them to write MSDSs (among many other things). Tax regulations force them to fill out tax forms, and the ways they do so can be, uh, highly creative. Being forced to express themselves in such ways doesn’t prevent them from making whatever arguments they want in public.

But there is an amendment in the Bill of Rights that really is a good match: the Second. The Second Amendment is about private possession of weapons of war; crypto has eminently been a weapon of war. It is about preserving the ability to resist tyranny; and if the government were to have the power to snoop on every communication in a modern computerized society, it would enable a level of tyranny so oppressive as to make every tyranny in history seem mild in comparison. It is also about self-defense against criminals; and there too the fit is good — not just because cryptography is essential for protecting such things as online banking transactions (though it is); it also ties in to personal self-defense, as might be performed with a firearm. To assassinate someone, a key piece of information is where they will be in the future; a good defense against assassination is to vary one’s schedule in an unpredictable manner. If you can read a person’s communications, you can predict where they will be; and if you can predict where they will be, you can put a bomb there or send a gunman there. If they will be wearing a bulletproof vest or bringing a bodyguard, you can get that piece of information too from their communications, and choose your weapons so as to pierce that vest and your team so as to outnumber any bodyguards.

To return to Apple’s argument, firearms design can be quite an expressive act too. The designs of John Moses Browning are said to have a distinctive character, and are revered by many; one of his designs, the M2 heavy machine gun, recently completed its hundredth year in active duty with the US Army. But people would think a gunsmith was out of his mind if he proclaimed that he had a First Amendment right to make whatever firearm he wanted, and would tell him: no, whatever rights you do or don’t have in that regard come from the next Amendment in the list.

To say that the Second Amendment covers crypto is admittedly a completely novel interpretation of it; but much is said about the need to interpret the Constitution in accordance with the needs of modern society, and this is a lot more natural than many of the reinterpretations that have been foisted on us under that argument. Technological change means that cryptography isn’t, as it was in the era of the Founding Fathers, just something done by hand; now it’s weaponized, so weapons freedoms apply. The First Amendment protects discussions of weapons; the Second Amendment protects actually fielding them.

This is not to imply that all the present rules for firearms would apply without change to crypto, or that they’re even really the right rules for firearms. It’s too easy to use crypto without knowing it, and too much of modern society depends on doing so, for there to be much sense in, say, prohibiting it for convicted felons. It’s also a lot easier to download a program than to make or buy a firearm, which weighs strongly in favor of having the laws looser: a law that’s too easy to flout is best not made at all. Also, there are many sillinesses in weapons law, and it would not do to duplicate all those for crypto. But making use of the Second Amendment would still be better than not making use of it.

Deliberative Process?

That’s the name of an exemption from the Freedom of Information Act: government agencies don’t have to reveal records if they are part of “the deliberative process”. Congressional subpoenas are limited by the same or a similar exemption, under the name “executive privilege”. But the reasons for these things are rather mysterious: when government officials are conspiring with each other (“deliberating”), isn’t that exactly the sort of thing the public should know? Or that Congress should know, in the case of “executive privilege”?

For that matter, what exactly these exemptions consist of is not entirely clear. Lawyers would probably tell me that it’s clear, but they would also probably advise me that to determine whether they apply in any given case I should avail myself of the services of a legal specialist who is familiar with the precedents set by a long series of court cases and who would charge upwards of $500/hour.

The general idea, admittedly, is clear enough: the exemptions protect records which are made by a government agency as it tries to decide what to do, and which would be rather embarrassing if released in public. To divulge them would reveal all sorts of floundering around: half-baked schemes, wrong ideas that got shot down, and abuse received by ideas that ended up successful. But pretty much any document an agency creates could be said to feed into its decision-making in one way or another, which yields endless opportunities for lawyers to squabble over the details.

Wikipedia’s stub article says that these privileges are “common-law” privileges, which is lawyer-speak for something that was invented by lawyers and judges rather than something that Congress passed into law (or, in the case of “executive privilege”, something found in the Constitution). “The theory”, it says, “is that by guaranteeing confidentiality, the government will receive better or more candid advice, recommendations and opinions”. Well, certainly there are people who would refrain from telling the government something if they knew it would become public. But that’s often because it isn’t actually true. Being known for saying an unpopular truth can be bad, but isn’t as bad as being known for saying an unpopular lie. (Popular ideas, whether true or false, are going to get heard by the government anyway.) For that matter, in practice these privileges mostly seem to be used to protect government employees, not outsiders offering advice. These people have chosen to be in government, and are being paid to be in government; they can stand a little embarrassment, even if undeserved.

Other arguments might be imagined. But these exemptions aren’t about national security secrets, where it is important that the public should know them but even more important that foreigners should not; national security has its own exemptions. Nor are they about protecting government officials from harrassment; in the case of FOIA that’s done by fees, and in the case of executive privilege it doesn’t really need to be done in the first place, since Congress has a lot less manpower with which to investigate than the executive branch has to respond to its investigations.

So what’s going on here seems to be that in response to lawsuits demanding documents, executive branch lawyers have argued that the Freedom of Information Act couldn’t possibly mean what it actually says, because that would be much too intrusive; likewise for Congress’s oversight powers. And the courts have been weak enough to buy those arguments.

Torture’s effectiveness (or lack thereof)

Often in a controversy the things that are most interesting are the things that there isn’t any particular controversy about. Such is the case with the recent torture report from the Senate Committee on Intelligence. One of its twenty conclusions was:

16: The CIA failed to adequately evaluate the effectiveness of its enhanced interrogation techniques.

The CIA never conducted a credible, comprehensive analysis of the effectiveness of its interrogation techniques, despite a recommendation by the CIA inspector general and similar requests by the national security advisor and the leadership of the Senate Committee on Intelligence.

As they then explain, they are referring to the sort of analysis that they themselves conducted: looking at each piece of important intelligence (such as the identity of Osama bin Laden’s courier), finding where that information came from, and trying to figure out whether the individual from whom it came had been subjected to harsh treatment prior to providing it — and if so, whether it seemed like the harsh treatment had been essential in getting it out of him. This is the sort of analysis they were accusing the CIA of never having done; instead, according to them, the CIA’s own internal reviews had relied on the opinions of the people who designed and ran the interrogation program, and had fobbed off outside queries by answering a different question, namely whether the interrogation program as a whole had produced worthwhile intelligence.

The CIA’s official response:

We agree with [this conclusion] in full.

They say more, but nothing more needs to be said. And they don’t try to walk back that admission by saying something along the lines of “well, we had no formal assessment, but informally we had a good handle on it”.

As for why they would concede such a thing, a lot of it is that they don’t know how their prisoners would have responded to ordinary interrogation because they didn’t try; instead they just went straight to physical abuse. (I write “physical abuse” because most of their techniques don’t rise to the level of torture. Slamming someone against a wall is roughing him up, not torture. Waterboarding probably qualifies as torture, as does keeping someone awake for three days at a stretch. And “rectal feeding”, which they did on a few occasions, is just foolishness: it isn’t painful enough to be torture, and it’s not a viable way to feed someone; the digestive tract doesn’t work in reverse.) In any case, because of this practice of going straight to physical abuse, in most (perhaps all) of the cases where the Senate report argued that the valuable information obtained from a prisoner was obtained prior to him being physically abused, they could make this argument because some other organization had interrogated the prisoner first.

The Senate report seems to be trying to give the impression that not a single piece of useful information was derived by the CIA from someone being phyically abused. They of course do not say that they are trying to prove such a thing, because it’d be pretty silly to try to prove that torturing someone absolutely eliminates the chance of getting useful information out of him. But the vast majority (perhaps all) of the examples in their thousands of pages of examples point that way.

The CIA of course has responses — most of which seem intended to take the edge off the criticisms rather than thoroughly refute them. Some of the responses are quite weak. To argue, for instance, that although the government already had a certain piece of information that was re-obtained by abusing a detainee, the prior information hadn’t been available to the relevant CIA officer, comes perilously close to arguing “we had to abuse people because our computer systems were mismanaged”. Likewise, arguing that information from a detainee was valuable even though it just confirmed information they already had from multiple sources comes perilously close to arguing “we had to abuse people because we were too stupid to know when we’d already found the truth”. The one example the CIA offered that seemed to show that physically abusing a detainee had been worthwhile was that Hambali, under duress, said that a certain group of students had been being groomed as pilots for Al Qaeda operations, then later tried to retract it — but it was judged to be correct, on what sounds like good grounds (although it’s hard to really tell).

The CIA had a rather strange theory of torture, differing greatly from the usual notion of telling a prisoner that if he doesn’t answer the question the pain will start (or will continue). Instead of trying to extort information, they were trying to break people — to reduce them to a state of “learned helplessness”, after which supposedly they would answer questions. Learned helplessness is a notion that comes out of experiments with dogs; the dogs were tortured with electrical shocks under conditions where they truly were helpless; and then later, when the door of the cage was left open and they could have escaped, they still lay there whimpering under the shock rather than jumping out. It is not clear how this would help with interrogation of humans; there would seem to be no need for detainees to “learn” helplessness when they can just be put in a situation where they really are helpless; and passively submitting to a hopeless situation is different from actively answering questions correctly.

The CIA’s theory originated with not with experienced interrogators but with two psychologists from the military’s SERE (Survival, Evasion, Resistance, and Escape) school, who there had been waterboarding trainees in order to give them a taste of what they might have to go through. One of those two, James Mitchell, in an interview with Vice News, seemed to be trying to tell the interviewer that he had misgivings about that use of waterboarding: a reaction from trainees who’d gone through it was that they never wanted to go through that again, and if captured would just tell the enemy everything; so the exercise was just “doing the enemy’s work for them”. Unfortunately the interviewer did not pick up on this and ask whether the psychologist indeed meant that they should stop waterboarding SERE trainees; but it seems like the logical conclusion. The military, while it believes in practicing for war, has long held to the rule that “you don’t need to practice bleeding”, and it seems reasonable that the same should go for being tortured. Also unfortunately unasked in the interview was what exactly the idea was, with this “learned helplessness” theory of torturing people; the Senate report is somewhat vague on this, and if posed as an abstract question about human psychology, this should have been answerable without having to divulge classified information.

In any case, the CIA sure didn’t break Khalid Sheikh Mohammed, perhaps their most important detainee. He soon picked up the pattern of the waterboarding, such as that each pour of water was to last thirty seconds; near the end of the pour, he would hold up fingers in the air to count off the remaining seconds. And then, under questioning, he continued making stuff up left and right, doing his best to distract the agency from its pursuit of his associates. In one case he got two innocent men arrested; in another, he talked about a plot to assassinate former President Jimmy Carter. (Somehow the CIA thought that that was worth writing down, rather than just laughing at.) What worked, with him, was to show him that someone had been arrested; then he would give up details on that person. Occasionally he slipped up and said something useful; but it’s not like he got anywhere near being broken. Not that one would expect the mastermind of the 9/11 attacks to break easily, of course; torture advocates might argue that waterboarding was too wimpy and that the rack or the thumbscrew would get better results — or perhaps, to pick a more modern method, that it should have been electricity to the genitals.

The way that torture has been advocated in recent years, though, has been rather strange. The scenario that was usually invoked was of the catching of a terrorist who has planted a bomb and who must be forced to divulge the location of that bomb before it explodes. In the history of terrorist plots, though, this is not something that happens much. Often someone is caught before planting a bomb; often he is caught after it explodes; but being caught in the interval between planting the bomb and it exploding? That is usually a relatively short interval of time; in suicide bombings, its length is zero. Even if a terrorist is caught during that interval, he has to be caught in such a way that the authorities know he has planted a bomb which hasn’t exploded yet; they somehow have to have insight into his operation, yet not enough insight to know his target.

But though it seems unlikely, this “ticking time bomb” scenario is not entirely empty. It could happen. The people who invoked the scenario never (that I saw) offered any documented cases of it happening — any cases one could point to and say “if we only had tortured X, we could have prevented the N deaths and M severe injuries from the bomb he laid”. They certainly did not offer long lists of cases like that, bemoaning “how many more casualties need to be added to this list before we come to our senses?” For all I know, the scenario has never happened, though I would guess that it has happened at one point or another, somewhere or other. Yet even if it hasn’t, it might in future.

It’s just that this is not the way to make laws. For every law, there are cases where it would be best to break the law. Even for murder, one can point to cases where murdering someone would have stopped the much greater harm that he did, and where someone was already inclined to murder him and was held back only by fear of the law. There are occasional times and places even for treason; this nation was formed by a treasonous rebellion, as have been many others. Yet to make murder and treason legal would mean anarchy. Likewise for torture: just because there are rare cases where torture would be worthwhile does not mean that rules should be written to permit torture. For exceptional cases, the law has escape hatches. Prosecutors are likely to decline to charge someone who by torturing has prevented many deaths and injuries; juries are likely to decline to convict; and in the last resort, a pardon is likely to be granted.

Besides this outright advocacy of torture, there is another, subtler form of advocacy, perhaps unintentional, which consists of fictional depictions which show it working better than it really does. I have not made anything like a comprehensive survey of these, and would not care to; but the movie The Battle of Algiers is perhaps the most prominent example. It doesn’t expressly advocate for torture, of course; rather, it uses the fact that the French tortured as propaganda against them. Yet it presents torture as a very effective tool for rounding up terrorist networks. The military is shown marching in, in response to some terrorist bombings, and the commanding officer is shown explaining to his subordinates what their tactics will be. To round up networks of terrorists, he says, they need information. And how to get information? “L’interrogatoire!”, he exclaims. It is implicit that this means torture; and the principal terrorist that the movie focuses on is indeed found via torturing someone.

The movie is compelling enough, and fair enough to the military, that generations of counterterrorist specialists have watched it to gain an idea of what happened in Algeria; and it is indeed well worth watching even if just to see what things looked like. But more recently, one of the principal officers in charge, Paul Aussaresses, published his memoirs. Reviews of the book largely focused on his admission that torture was used. But when read in detail, the book tells a different story. Yes, they tortured; but mostly what they did that was objectionable was to kill people without trial — thousands of them. As Aussaresses tells it, for the vast majority of the terrorists, torture wasn’t necessary to get information out of them; they spilled the beans without being tortured. It is a very different story than that told by the movie, and one which reflects worse on pretty much everyone involved: on himself and his men (for those executions without trial), on the terrorists (for not being the hardened revolutionaries they’d like to think of themselves as), and of course on those who exaggerated the role of torture and missed the mass killings.

Though the book received plenty of condemnation, its accuracy does not seem to have been a point of criticism; mostly it was criticized for being appallingly tone-deaf. Which it is; Aussaresses was not the sort of man who might quote Napoleon’s dictum that in war, “the moral is to the physical as three is to one”. Both in Algeria and when writing, he focused purely on the short-term effect of his executions without trial. The long-term effect of poisoning the public mind against France he does not consider — for that, he seems to prefer to blame leftists in the press. Which is understandable; the press was indeed a middleman for these sorts of charges, and there were plenty of leftists in the press who sympathized with the Algerian independence movement and overlooked its savage nature. (That the savagery was not simply a problem of the French being there has been shown quite amply by the post-independence history of the country, which has featured terror and repression far worse than the French ever received or dished out.) But to put the entire blame on the press, as if the underlying facts did not matter, is too easy. Leftists commonly neglect the truth, but their charges only have serious traction with the general public when there is some truth to them.

But though this heedlessness of public opinion may have contributed to losing the Algerian war, and certainly made the author a pariah in France after his book was published, it does lend plausibility to his claim that torture wasn’t all that important: whatever his reasons for making that claim might have been, political correctness could not have been among them.

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