Prism and the NSA’s phone tapping programs were supposed to be emergency measures designed to combat terrorism. But what happens when the threat of terrorism is the norm?

Immediate aftermath of the first blast (within 10 seconds) of the Boston Marathon bombings. (PHOTO: AARON TANG/WIKIMEDIA COMMONS)

It’s been less than a week since former National Security Agency systems administrator Edward Snowden, through the reporting of The Guardian and The Washington Post, lifted the curtain on the United States government’s vast surveillance apparatus. Snowden, who shed light on how the NSA monitors the cell phone activity, credit card data, and Internet browsings of millions of Americans, is responsible for one of the biggest national security leaks in U.S. political history. And the American people don’t really seem to care.

More than half (56 percent) of the 1,004 adult respondents to a national survey conducted June 6-9 by the Pew Research Center and The Washington Post said that the NSA program tracking telephone records is “an acceptable way for the government to investigate terrorism.” Forty-one percent felt the practice was unacceptable.

The American public is somewhat more divided on the NSA’s Internet monitoring programs, with 45 percent of respondents agreeing that the government should be able to “monitor everyone’s email and other online activities if officials say this might prevent future terrorist attacks” and 52 percent disagreeing. Despite the Prism revelations, this isn’t a drastic shift from how Americans felt back in July 2002, when a Pew survey found that 45 percent of Americans were OK with the government monitoring Internet activity in order to prevent future attacks (47 percent said it should not). Pew’s researchers conclude from the latest survey that there are “no indications that last week’s revelations of the government’s collection of phone records and Internet data have altered fundamental public views about the tradeoff between investigating possible terrorism and protecting personal privacy.”

In a poll conducted shortly after the manhunt for the Boston Marathon bombing suspects, 78 percent of respondents agreed with the increased used of surveillance cameras in public places.

Despite days of headlines about the American surveillance state and government invasions of privacy (and a huge spike in sales of George Orwell’s 1984 on Amazon), Americans seem to have accepted the scope and reach of the post-9/11 surveillance state into their lives as necessary.

Pew notes that 62 percent of Americans believe the federal government should investigate possible terrorist threats, even if that means intruding on personal privacy, while just 34 percent say it is more important for the government not to intrude on personal privacy, even if that limits its ability to investigate possible terrorist threats.

Why are Americans so comfortable with the surveillance state? It’s likely that this acceptance goes hand-in-hand with an acceptance of the reality of modern terrorism.

In a New York Times/CBS poll conducted shortly after the manhunt for Boston Marathon bombing suspects Tamerlan and Dzhokhar Tsarnaev, 78 percent of respondents agreed with the increased used of surveillance cameras in public places, “judging the infringement on their privacy as an acceptable trade-off for greater security from terrorist attacks,” as the Times put it. Of those respondents, 24 percent said a terrorist attack on the United States was “very likely” in the next few months and 42 percent somewhat likely. (In the previous year, just 10 percent of people had said another attack in the U.S. in the next few months was “very likely.”)

The threat of terror in our cities, immediately after 9/11, was paralyzing. Now, despite the horror of the bombings in Boston and the attacks that have been thwarted by counterterrorism efforts in the years since 9/11 (like Najibullah Zazi’s 2009 plot to detonate explosives on the New York subway), terrorism seems to have become more accepted as a modern geopolitical phenomenon, a fixture in the background of our daily lives.

“Concern about another terrorist episode in the United States has increased after the events in Boston,” wrote Micah Cohen at FiveThirtyEight shortly after the manhunt for the two suspects concluded. “But there has not been the upsurge in concern over such an attack that there was in the aftermath of September 11, 2001, in New York City. The post-Boston polls have also shown that Americans’ personal sense of threat—as opposed to the generalized threat that the country faces—remains low.”

How, exactly, does one get used to the threat of terror? Have Americans become so habituated to domestic dangers (as opposed to, say, the faraway theater of conventional war) that we’ve come to accept the continued presence of the modern surveillance state, even when a someone like Edward Snowden provides a glimpse as to how it intrudes on our everyday lives?

It’s certainly possible. While terrorism is designed to demoralize and, well, terrorize a target population, groups with regular exposure to ongoing violence can develop a high tolerance for disruptions to civil society.

Some of the best research into this matter focuses on the psychological impact of terrorism on Israelis following the outbreak of the Second Intifada in September 2000. In a 2003 article in The Journal of the American Medical Association, researchers Avraham Bleich, Marc Gelkopf, and Zahava Solomon set out to determine the relationship between terrorist attacks and the prevalence of traumatic stress-related symptoms and the public sense of safety in Israel. They discovered a “moderate” level of stress immediately following the outbreak of violence around Jerusalem from 2000 to 2002; survey participants “showed distress and lowered sense of safety, they did not develop high levels of psychiatric distress, which may be related to a habituation process and to coping mechanisms,” according to the researchers. This resonates with the reaction of U.S. citizens immediately following 9/11. A national survey conducted just days after the attacks found that 44 percent of the adults reported substantial stress symptoms.

But over time, the trauma caused by the Intifada became somewhat normalized throughout the Israeli population. New York University’s Ariel Y. Shalev found in 2006 that PTSD levels eventually stabilized in various neighborhoods throughout Jerusalem, regardless of whether they’d been directly aﬀected by terrorism or not.

A 2010 study in Economica on Israel’s experience with terror by Cornell University’s Asaf Zussman (and co-authored with Bank of Israel researcher Noam Zussman and Dmitri Romanov of the Israel Central Bureau of Statistics) examined happiness and psychological health among Israeli citizens from 2002 to 2004, the years immediately following those examined by Bleich et al. In their econometric analysis of happiness among Israelis four years after the start of the Intifada, Zussman and her colleagues found that terrorist attacks had practically no effect on happiness levels. Zussman is careful to note that this isn’t a blanket habituation phenomenon for Israel’s entire populace—Arab Israelis experience a more negative reaction to terror attacks than Jewish Israelis—but that the general tolerance for terrorism in the nation remained high as the years passed from the initial outbreak of violence. “Overall, the level of happiness remained stable throughout the Intifada years despite a large variation in the intensity of terrorism across time and location,” writes Zussman. “The evidence thus casts a doubt on the eﬀectiveness of terrorism in achieving one of its main objectives—demoralizing enemy population.”

But even if terrorism seems uncontrollable to the average citizen, why aren’t more concerned with the level of surveillance undertaken by a state they, theoretically, have some legal and political power in? Not only are programs like Prism classified as top secret and their mention outlawed by the FISA courts that authorize their usage, but the very architecture of surveillance is designed to be unseen and unobtrusive. We only get riled up about violations of our constitutional rights when they’re obvious, and immediate, like the genital scrutiny of the Transportation Safety Administration. By contrast, terrorism, despite its infrequency, is a still a highly visible and deeply personal experience for Americans. Conor Friedersdorf draws out this distinction with regards to September 11:

Most Americans don't just remember where they were on September 11, 2001—they remember feeling frightened. Along with anger, that's one emotion I felt, despite watching the attacks from a different continent. That week, you couldn't have paid me to get on a plane to New York or Washington, D.C. Even today, I'm aware that terrorists target exactly the sorts of places that I frequent. I fly a lot, sometimes out of LAX. I've ridden the subway systems in London and Madrid. I visit Washington and New York several times a year. I live in Greater Los Angeles. ... As individuals, Americans are generally good at denying al Qaeda the pleasure of terrorizing us into submission. Our cities are bustling; our subways are packed every rush hour; there doesn't seem to be an empty seat on any flight I'm ever on. But as a collective, irrational cowardice is getting the better of our polity. Terrorism isn't something we're ceding liberty to fight because the threat is especially dire compared to other dangers of the modern world. All sorts of things kill us in far greater numbers. Rather, like airplane crashes and shark attacks, acts of terror are scarier than most causes of death. The seeming contradictions in how we treat different threats suggest that we aren't trading civil liberties for security, but a sense of security. We aren't empowering the national-security state so that we're safer, but so we feel safer.

The “national emergency state” from which programs like Prism have originated has outlived the national emergency. A strong executive isn’t necessarily alien in the American constitutional system in the event of an emergency. The Prize Cases established that one of the core obligations of that branch is to meet any exigency “in the shape it presented itself, without waiting for Congress to baptize it with a name,” and subsequent Supreme Court cases—I’m thinking Ex parte Milligan, Schenck v. U.S. (which established the “clear and present danger” prerequisite for executive action), and Brandenburg v. Ohio, in particular—have continued to define and circumscribe the juridical spaces where the executive branch of the government can act unilaterally to deal with a crisis.

The late political scientist Clinton Rossiter called this America’s “crisis government.” The best description that I’ve ever read for the phenomenon comes from Italian philosopher Giorgio Agamben, who coined the term "the state of exception" to mean “a position at the limit between politics and law ... an ambiguous, uncertain, borderline fringe, at the intersection of the legal and the political” where an executive acts extralegally in order to preserve an existing legal framework, effectively superseding the rule of law in order to save it.

But if terrorism and the resulting surveillance state have become accepted features of American public life (which, according to the latest polls, they have), then the apparatus the government deploys to adjudicate and prosecute our war on terror should become normalized in our existing legal regime. The Patriot Act and National Emergencies Acts that provide the legal basis for the modern surveillance state were supposed to be temporary "emergencies," but with their continued re-authorization by Presidents Bush and Obama, they have become the norm.

We are lurching from emergency to emergency, living in a permanent state of exception. Margot Kaminski, executive director of the Information Society Project at Yale Law School, puts it nicely in The Atlantic: “Foreign intelligence is the exception that has swallowed the Fourth Amendment whole.” This, I think, is the most significant impact of Snowden’s leak: not necessarily to expose wrongdoing in the legal sense (since the sweeping dragnet of Prism and the NSA’s monitoring of Verizon’s phone records are technically legal) but to take the abstract legal concepts outlined under our emergency constitution and translate them into a political reality in the minds of the American populace.

"I really want the focus to be on these documents and the debate which I hope this will trigger among citizens around the globe about what kind of world we want to live in," Snowden told The Guardian. "My sole motive is to inform the public as to that which is done in their name and that which is done against them." The Pew/Washington Post poll may indicate that people are comfortable with swapping liberty for security, but that doesn’t mean they’re comfortable with an unaccountable, totally opaque, Kafka-esque security apparatus that falls in the legal gray area of our ongoing state of exception.

There’s an historical anecdote that often crops up among political theorists and legal scholars when they discuss the tradeoff between liberty and security during national emergencies. Following the fall of the monarchy in 509 BCE, the Roman republic moved to establish an executive branch that was headed by two co-equal magistrates, but the Romans recognized the necessity of a unitary executive that could act swiftly and decisively in times of extreme crisis, if only for a brief period of time. The only person to serve in this special constitutional role of dictus in Roman history was Lucius Quintus Cincinnatus, a Roman statesman and aristocrat who had previously served as counsel. Cincinnatus was elevated to the role of dictator in order to repel an invading tribe, and, following a swift military victory, Cincinnatus relinquished his authority, stepped down from the role of dictator, and returned to his life as a farmer. Cincinnatus’ brief rule is often cited as a prime example of civic virtue, but for political theorists like the late Clinton Rossiter, the Roman consul was an historical antecedent for a successful constitutional dictatorship.

If the Pew data is any indication, the American people are amenable to the idea of a temporary dictus state in times when imminent danger comes to the United States. But the whole goal of leaks in general, let alone Snowden’s leak, is to ensure that citizens don’t become as habituated to the emergency state as they have to terrorism, to rouse Americans from a period of complacency to, somehow, recognize and rein in the emergency state when the intelligence community cannot live up the the virtue and discipline of Cincinnatus.