A reporter, a reddit founder, a lawyer, and an ex-NSA chiefwalk into a debate

Our four contestants for the most recent of Canada's public Munk debates.

Munk Debates

TORONTO—Friday night, luminaries from both sides of the "broad state surveillance"argument took the stage together for a public debate, the latest in Canada’s Munk Debateseries, on the subject. In the end, surveillance critics won the spread between pre- and post-debate audience polls to triumph, but in between were two hours of impassioned invectivefrom some of the world’s preeminent experts and advocates on a public issue still far fromsettled.

The resolution, in typical Munk style, was direct though not without ambiguity: “Be itresolved, state surveillance is a legitimate defense of our freedoms.” As you’ll read below, theinterpretation of the resolution was the source of a great deal of controversy.

Friday’s debate featured two teams of two debaters. Arguing for the resolution were Michael

Hayden, former head of the NSA and CIA, and US director of National Intelligence, alongwith Alan Dershowitz, Harvard Law professor and criminal defense attorney. Arguing againstthe resolution were Glenn Greenwald, the journalist and civil libertarian whose coverage inThe Guardian opened the Snowden saga, and Alexis Ohanian, co-founder of reddit andInternet freedom advocate. Adding to the fun, Edward Snowden himself appeared by videofor a brief statement.

The Munk page on the debate will soon feature the debate transcript for free, along with videoof this and past debates for paid members. Also free and currently available are a few two-page abstracts submitted in advance by each of the four debaters. These outline their primaryarguments and approaches to the debate. (Greenwald, Hayden, Ohanian, Dershowitz)

With the stage set, let’s take a brief tour through the major points of tension between thedebaters, before finishing with excerpts from our exclusive post-debate interviews.

Munk Debates

The meaning of “is,” and other interpretation issues

The text of the resolution was the matter of some acrimony among the debaters. Initially, itseemed that the stated resolution was somewhat favorable to privacy advocates. Rather thanasking if surveillance enhanced "public safety," or asking about an appropriate balancebetween liberty and safety, the resolution put “freedom” front and center.

But both Hayden and Dershowitz seized on the word “defense” to talk up public safety in their

opening presentations, arguing that such safety is a prerequisite for the exercise of anyfreedom. Therefore, surveillance is a legitimate act of defense. Greenwald and Ohanian, bycontrast, argued that the surveillance state as it exists isn’t necessary or effective in protectingthe public from terrorism and that its extent goes far beyond what would be useful for thispurpose.

Another significant point of contention about the debate resolution centered on the meaningof “state surveillance,” or, in historic terms, the meaning of “is.” Dershowitz centered hisdefense of the resolution on the notion that surveillance of some kind, of someone, isuniversal among states. The only questions are who is surveilled, by what means, and howthese things are decided. In Dershowitz’s picture, even if the state is currently surveilling toomuch or too broadly, these are questions about adjusting a legal system that is ultimatelywell-intentioned and, like all human institutions, a work in progress. But the underlyingprinciple of state surveillance, he argued, is accepted by nearly everyone.

Greenwald disagreed strenuously, claiming that the resolution, phrased in the present tense,referred to the system of state surveillance which currently exists. He called his critics' claim astraw man argument, saying that he never encountered a single person who maintains thatthe government can never surveil anyone, ever. Today's concerns were about the modernapproach to massive, non-targeted surveillance of entire populations.

When Dershowitz, in his closing remarks, conceded that the extent of the current surveillancesystem was too great and needed to be reined in, Ohanian seized the moment. Hecongratulated Dershowitz on switching sides, giving the audience a quick laugh.

Ohanian’s role as “the nerd in the room”

Ohanian’s opening remarks centered on the economic and security impact mass surveillancehas on Internet infrastructure and the IT industry. Pointing out that the insecurity (real orperceived) of hosting data on American servers was already spurring a migration away fromUS-based Web services, Ohanian cited an estimated $180 billion in economic damage causedto cloud computing and storage providers in the US by the growing migration. He alsopointed out that Web insecurity induced by the NSA stands, under other circumstances, to beexploited by other actors, endangering the security of the Internet even if governments donothing wrong. Mass surveillance isn’t useful nor exclusively used for fighting terrorism, and

it’s damaging both the economic and the information security of Americans on the Internet.Thus, he concluded, it’s essential for the future of the internet that it be done away with.

As the debate wore on, Ohanian seemed content, as an ambassador from the Internet (or, ashe put it, “the nerd in the room”), to periodically reiterate and reinforce this same basic point.This left the moderator content to direct more questions and rebuttal opportunities toGreenwald. It was to the debate’s benefit, as the room filled with sparks from Greenwald’srepeated collisions with Hayden and Dershowitz.

“Don’t wait for the translation; answer me now!”

In his pre-debate précis, Greenwald referred to the matter of terrorism as a “pretext” for themass surveillance currently underway by major Western governments, writing:

"Terrorism" is the pretext, not the cause or justification, of this sprawling system.Indeed, over the past 12 years, the US has left no doubt that it yells "the terrorists" asa means of scaring populations into submitting to whatever it wants to do, no matterhow radical and destructive.

After citing evidence from court cases and Civil Liberties Boards that the surveillanceprograms aren’t effective at preventing terrorism and have been used against foreigncompanies and allied governments, he continues:

The Snowden documents have revealed the actual target of this system: entirepopulations of innocent, law-abiding people who have done nothing wrong, and whoshould not have their private communications and other acts collected and stored bydistant governments operating in secret. They even include the spying government'sown citizens, en masse, who now know that the vast bulk of this system is devoted tosweeping up and storing massive amounts of their own private activities.

Dershowitz hit this point hard, alleging in his opening remarks that by making “pretext” oneof the centerpieces of his précis, Greenwald was alleging that the actual intent of thesurveillance system was nefarious. Accusing Greenwald of harboring conspiracy theoriesabout governments’ purpose in surveilling their citizens, he challenged Greenwald toarticulate the secret purpose implied by his remarks about “pretext.”

In his rebuttal, Greenwald, on his back foot for perhaps the only time in the debate, de-emphasized the purpose argument without disavowing his “pretext” characterization. Heargued that while we may not know what the purpose is in a true sense, it’s clear from therecord that terrorism cannot be the primary purpose since the programs are not effectiveagainst terrorism. He argued further that purpose is unimportant if the programs themselvesare harmful and subject to abuse both by individuals within the intelligence services and byany future governments whose purposes may not be as pure.

Dershowitz didn’t let go. During the moderator questioning, he hounded Greenwald withrepeated accusations that “there’s no pretext without a hidden purpose!” Greenwald, clearlyincensed, retorted. “You can keep saying that, but it doesn’t change the record.” Citing againhis evidence that the programs aren’t effective in combating terrorism, Greenwald still didn’tsatisfy Dershowitz. The tension between the two persisted after the debate.

“Facts matter,” but whose facts are in evidence?

In his opening remarks, Hayden asserted that “facts matter.” The key point, he avowed, is thenature of the surveillance programs which exist today. He believed these were limited inextent, bound by legal process, and narrowly focused on defense from terrorism. Theemphasis on the present system put the General at odds with his partner, Dershowitz, on theinterpretation question as to whether the matter is surveillance in its present state or as amatter of abstract principle.

Greenwald’s opening presentation, his rebuttal, his question answers, and his closing remarksall focused heavily on factual citations and quotations from experts, ranging from courtdecisions, to Senators, to internal NSA documents released in the Snowden leaks, to theWhite House’s Civil Liberties Board. It all supported Greenwald’s core contentions: that thesurveillance state involves the routine collection of private information on millions of peopleincluding Americans, that it’s not necessary to fight terrorism, and that the NSA has beendishonest about the nature and extent of its surveillance programs.

Dershowitz, though debating on the pro-surveillance side of the stage, was also ready to allowthat mass surveillance of Americans was taking place in some capacity. In his closingremarks, he explicitly said that allowing some level of surveillance intrusion without atraditional due process was not only part of the present system, but it's something he would

allow and support in the abstract.

But not Michael Hayden. One of the most explosive facts in the firestorm over the Snowdenrevelations was James Clapper’s “no sir” response to a question from Ron Wyden (D-OR),when asked whether the NSA collects information on millions of Americans in light of theSnowden leaks. For his part, Hayden seemed pleased to repeat Clapper’s most famous soundbite. Repeatedly he avowed that Greenwald’s assertions were wrong and that, in fact, nothinguntoward was taking place. There was no mass collection or surveillance. Targetedsurveillance operated under strict legal controls. On every point, the two men’s view of thefacts stood in sharp contrast to each other.

There was only one bit of mass surveillance Hayden would admit the NSA was conducting:mass collection of telephone call metadata on foreigners. He insisted this was inside a “lockbox,” with only 22 people authorized to view data, only a simple “who called this number”query permitted, and only 280 queries in 2012.

The General characterized press reporting on the Snowden leaks and other mass surveillancereporting as akin to the perspective of a person granted only a few glimpses of a whodunitfilm’s third act, merely attempting to guess who committed the murder. The metaphorseemed geared to de-escalate the factual clash into one of interpretation, but there were somany clashes on basic facts that it seemed impossible to resolve the inconsistency except byconcluding dishonesty by some party.

It was an interesting experience, sitting in a debate wherein the most fundamental factualgrounds for the debate are in bald and total dispute between parties. There was a curioustension in the air among the audience each time Greenwald or Hayden rose; what was goingto be said next? How could two men standing in the same room, both experts in this field, soconfidently, so consistently bring opposite factual claims? Were we in the presence of anunscrupulous fabulist who shouted glib misinterpretations into the headlines in an effort toenrich his journalism career? Or perhaps a cynical career intelligence executive smuglyplaying the world public for fools by lying through his teeth? Or was there some kind ofincredible chain of honest misunderstandings underlying this clash of narratives?

This was the prevailing thought as the debate closed. As the lights came up, the hall cutelyemptied to the tune of Michael Jackson singing “Somebody’s Watching Me.” Ars had the

opportunity to try to find a little more clarity afterward, speaking with each of the four men atthe debate. The following transcripts, slightly condensed and omitting greetings,interruptions, and pleasantries, were our conversations.

Greenwald: "The big picture.. is something people should understand."

Ars: I felt like there was a bit of a tension there over the debate resolution withDershowitz, wherein some of the difference in your position was a differentinterpretation of “state surveillance.”

Greenwald: Absolutely, it is a huge ambiguity in the resolution that we sparred over. Idefinitely did feel like the resolution should have clarified it, because it’s really important thatwe talk about the surveillance state the way it actually is, in reality, as opposed to the abstractquestion of whether the state should surveil people at all. In fact, when Edward Snowden wasoriginally asked to contribute, he initially didn’t want to do it because he felt like the debateresolution was stacked against us.

Well, the debate resolution was phrased in the present tense, as “statesurveillance is.” Maybe that tends to make it about the surveillance system wehave.

Well, maybe, but Dershowitz clearly didn’t see it that way.

If this event were in New York instead of Toronto, would you go?

Of course! I was in New York two weeks ago.

You locked horns repeatedly with General Hayden over factual questions aboutwhat it is the NSA is doing, what data they’re collecting, how they’re using it, andwhat kind of controls they have, if any, on how they used it. It seemed like therewas a huge disconnect there between the pictures you were painting about thefacts and the picture the General was painting. Ars Technica has millions ofreaders who follow the news very actively; what do you think they will thinkabout the factual differences?

This is something that I went into the debate very much expecting, because I’ve been writingabout this topic for about eight years, and as I mentioned in the debate, there’s a huge gap

between what NSA officials say publicly and the reality of what they’re doing in secret. And Ithink that your readers, like anyone who’s following these issues and reading what’s comingout, will see that. And that’s why I focus very heavily on bringing that information, havingcitations, etc. In general, we trade claims about a lot of very specific issues, how many e-mails,what falls under which program, but the big picture, that very significant and very privateinformation is routinely being collected about Americans at large and millions of othersaround the globe, is something that people should understand very clearly, and I think largelydo understand.

Dershowitz debates as his partner, Hayden, looks on.

Munk Debates

Dershowitz: "I do think they are doing, right now, too muchsurveillance."

Ars: I noticed that you had some argument with Glenn Greenwald over theresolution, and whether “state surveillance” referred to the concept of statesurveillance or to the surveillance state as it currently exists.

Dershowitz: Oh, definitely, I think that this is maybe the whole core of my disagreement withGreenwald on the resolution. I’m a civil libertarian, I do think they are doing, right now, toomuch surveillance, but I think Greenwald and some others take it too far by not recognizing

that we’re talking about an adjustment on a system that’s designed to do good.

One of the purposes for which this kind of data is being used, as Greenwaldreported in some of his coverage for The Guardian last year, is that this evidenceis being used, in various capacities, against criminal defendants, particularly ina small number of drug related cases. You’ve had a long and illustrious career asa criminal defense attorney; if this kind of thing were used against one of yourclients…

I absolutely would exclude that, no question. Obviously, no evidence from this kind of thingcan or should be used in criminal prosecution at any stage, in any capacity. That’s totallyillegal. I’m completely opposed to it. Categorically. This kind of surveillance should absolutelybe completely restricted to address terrorism and nothing else, ever.

Hayden: "No, but we can get it from them."

Ars: General, I noticed that you locked horns repeatedly with Glenn Greenwaldover a number of factual claims that he made, and that you made. Mypublication has millions of readers, and more generally there are millions ofpeople out there reading the press and thinking about this issue. What do youthink they’re going to make of the factual conflicts we saw here tonight?

Hayden: Well, I’ll go back to what I said at the beginning of the night, that these issues arevery complicated and that the information about them that’s being released is being released,and in many cases reported, in a manner that, for better or for worse, is motivated by a desireto get the widest possible audience by painting these programs to look as broad and as scaryas possible. In fact, of course, we operate under strict legal controls and have a very narrowfocus on stopping people who want to hurt Americans and others.

So just as a factual statement, on the record, if I have a Gmail account and I havesome e-mails, that’s not being stored?

Of course it is. By Google.

But not by the NSA?

No, but we can get it from them.

And in order to get it from them, what do you need?

Well, if it’s your account we won’t ever get it. You’re an American. We only ever target foreignnationals outside the United States.

Well, perhaps any of the other people here, who aren’t…

We treat Canadians as domestic for this purpose too.

OK, so someone who’s British, or Israeli, or whatever, their Gmail. How do youget it?

We only collect that information if we have specific reason to believe that this person isconnected to one of three things: terrorism, proliferation, or cyber-attack. And with a courtorder based on evidence.

So this goes through the Foreign Intelligence Surveillance Court, a separateorder for this person?

No, we have a blanket order authorizing us to collect under certain circumstances, withperiodic audits to make sure that we’re complying, and adjust the precise criteria we use overtime.

Greenwald and Ohanian on stage.

Munk Debates

Ohanian: "WTF?"

Ars: I noticed that a couple times, Glenn passed you some notes during thedebate, especially right before the final statement. You seemed pretty cordial;what was on those notes?

Ohanian: Yeah. The last one was about something Alan Dershowitz said, pointing out that bysaying he wanted to lessen the present level of surveillance he was, arguably, essentiallyendorsing our side of the resolution. So I did end up pointing that out, which I thought was areally good point. Generally, you could tell Dershowitz’s opinion on this issue had a littlemore nuance, but he’s clearly an experienced lawyer and a very enthusiastic debater andready to really embrace the task of persuasion. Earlier in the debate, Glenn passed meanother note, at one point while the General was talking, I think about the 280 queries, hejust handed me a note that said “WTF?”

I think everyone in the hall was thinking that at various points, on the variousfactual disputes between Glenn and General Hayden.

Yeah. It really felt to me like it was almost unfair for me to be standing on a stage next to aguy like Greenwald, who’s like a walking database on the subject of this surveillance issue. Imean, I have done advocacy on this, but Greenwald has been eating and breathing this foryears. He’s so knowledgeable and articulate and has all the facts right on his fingertips.Really, in fact, if not for his reporting, this issue wouldn’t even exist as a major point ofdiscussion around the world. I mean, a year ago he was off taking e-mails from someone noone’s even heard of, Edward Snowden. Who’s that? Well, someone pretty important.

So, you may not want to answer this, but if you could take one subreddit andcompletely get rid of it, nuke it from orbit and never see it again, which onewould it be?

You know, this is a really tough question that I spend time thinking about. Obviously there’s alot of unpleasant stuff out there in the world, and it’s the question of bad people. What do youdo about bad people? I don’t have a good answer for that one, I think no one does. So, like,the Westboro Baptist church is a good example, terrible, hateful people, and even though

theoretically you could bar them from reddit, which of course we don’t, it’s not a solution forthe real preexisting problem of hate. But, thankfully, what we’ve found, both on reddit andeverywhere else in the world, is that mostly, people are good, and social media, as it happens,has been primarily a way of connecting good people and enabling good things. The majorityof people, the huge majority, really are good.

This kind of connects to the terrorism question, right? How despite the relativeease of committing…

That’s right, it would be so easy, and yet it never happens! Clearly one person with theslightest idea what they’re doing, a rented truck, a suburban shopping mall, this is like amovie that writes itself, and yet it almost never happens. And this is where I feel like theargument that terrorism is not a big deal is obviously so hard to make, plays so poorly on agut level, and yet in terms of realistic data the risks are so low, and we’ve had a massiveovercorrection on fighting it in ways that don’t make sense and that endanger us, both interms of surveillance and damaging the Internet, and in real life. So I hope that argument getsmade very effectively in the future despite how difficult it is to make.