05/05/2014 05:50 EDT | Updated 07/05/2014 05:59 EDT

Why State Surveillance Isn't Going Away Anytime Soon

The current state of government surveillance, the massive intrusion into our privacy, is not going to change anytime soon. A chance to move the debate constructively forward was missed.

On Friday evening in Toronto, retired General and former CIA and NSA Director Michael Hayden took the stage with Harvard law professor Alan Dershowitz to debate journalist Glen Greenwald and Reddit co-founder Alexis Ohanian on the topic of state surveillance at the Munk Debates. The fact that Greenwald told a Canadian paper he considered Hayden and Dershowitz "two of the most pernicious human beings on the planet" whom he finds "morally reprehensible" meant the evening was bound to provide at least some entertainment.

It did.

More important, however, was evening's takeaway. The quest to legally and responsibly balance the need for security and privacy continues to be just that. On one side we're left with "trust us" while paying lip service to a commitment to balance rights with security, and on the other, a discourse filled with superlatives -- the architecture of oppression.

It was a display where each side clung to moral absolutes and refused to acknowledge the underlying pretexts behind the other, swearing off the true empathy that might help us bridge what is becoming an unbridgeable chasm.

General Hayden began the debate. He launched into rhetorical questions about the meaning of surveillance -- meant to remind us, rightfully so, that surveillance can and should play a valuable role in keeping us safe. But if he really wanted to convince the audience of the necessity of the type of state surveillance he oversaw, he should have began with apology. When going forward we are invariably being asked to once again "trust us," the man responsible for an enormous betrayal of the public trust and abuse of state power needed to acknowledge that. But apparently there was nothing to acknowledge.

The shortcomings were not Hayden's alone. Professor Dershowitz brought up the interesting point that, notwithstanding the gross abuse of state power and overreach, the motives, or pretext, behind the surveillance program and those executing it were noble, or at least benign. To Professor Dershowitz, protecting Americans from terror is a justifiable pretext for a surveillance program. The overreach, or illegality, and ineffectiveness of portions of the program mean it needs to be refashioned and reigned in. (Though his previous dabbling into legalizing torture undermines the claim that he seeks to work within the rule of law instead of establish a new one.)

His attempt to reach across the aisle was rebuffed. Demonstrating an academically admirable ideological purity, but a practically lamentable stubbornness, Greenwald refused to concede. Proclaiming that he doesn't care about motives or pretext, he said it didn't matter to him why George Bush or, pretending to ignore the man sitting behind him, Michael Hayden, invaded and ruined Iraq, and tortured people.

That was the moment, the second time during the debate when humility was passed over, where everyone -- meaning we the public, our societies, and the rule of law, lost.

The genie is out of the bottle. State surveillance, the collection of metadata, and some type of infringement of our right to privacy is going to continue. The only questions are to what extent and under what circumstances -- the law's never-ending search for proportionality. That is the debate that needs to be had, urgently.

To justify the collection of metadata, Professor Dershowitz used the metaphor of street cameras, which he claims deter crime. Pedestrians who walk in front of street cameras give up some of their privacy in the name of security. The Internet should be no different, he said. But Greenwald reminded us why Internet surveillance is different than watching people walk across the street -- it's an invasion of privacy that goes to the core of who we are.

General Hayden needs to understand that. Yet, without an acknowledgment of the extent to which our trust was breached -- precisely because mass Internet surveillance and collection of data is, to quote Greenwald, an "invasion of our minds and thoughts" -- I'm not sure the former general does understand. That unwillingness or inability to come to terms with the pretext for the widespread cynicism on the part of skeptics of the surveillance programs is an institutional shortcoming that only legitimizes the lack of trust we the watched have towards the watchers.

Similarly, Greenwald's refusal to legitimize the pretext of the surveillance program, or even acknowledge that it matters, compromises his ability to ensure proper safeguards are put in place and the snowball doesn't get further away from us. When Greenwald talks about protecting us from terrorists he speaks about "men in caves" and says that past means of surveillance that kept us safe from the Soviet Union's "evil empire" are sufficient. But the Soviets didn't use Gmail or AT&T, and not all terrorists live in caves.

In his opening remarks, Alexis Ohanian came up with the fanciful idea that the Internet "is a fundamentally democratic platform." Maybe that's what he wants it to be, but right now I would argue it's in a simultaneously anarchic and totalitarian phase. There are no real rules of the game. Those with power and means are the ones coming out on top. The consequences, the abuse and devaluing of our rights, may not be undone.

Friday's debate in Toronto was about one side beating the other (the anti-surveillance side won). But if we're going to have this debate seriously, we'd realize it's not about finding a winner, but about finding a solution.


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