I appear to be writing a world history book about colonialism and surveillance

Was just trying to solve a simple problem that's come up at work, and here we are.

I’m a longtime government attorney, former U.S. State Department Attorney-Adviser. Recently I’ve been wrestling with the constitutional and ethical implications of the U.S. Government collecting and disseminating intelligence on domestic violent extremists, and what I keep coming back to is, “Why is it so much harder to deal with a domestic terrorist than an international terrorist threat?” I’m sometimes asked that—used to get asked that a lot when I literally made a living arguing with Europeans about privacy—and I’m always patiently explaining that the U.S. Bill of Rights (particularly the First and Fourth Amendments) apply differently to U.S. persons than to non-U.S. persons, especially outside the United States. This notion underlines the operating parameters for all the U.S. intelligence elements allowed to operate under Executive Order (EO) 12333 (enacted in 1981 by Ronald Reagan; amended several times since then).

But since 2013, when the activities of one Edward Snowden provoked a global conversation about the NSA, I’ve been wondering and wrestling with, why is that? Why is the United States so fixated on this foreign/domestic distinction, whereas most our allies just lean on into domestic intelligence gathering? The UK has MI5 (internal) and MI6 (external). France has DGSI (internal) and DGSE (external). Germany has BfV (internal) and BND (external). And yet the United States, in 2024, still has some huge hang-up about having a domestic intelligence agency capable of doing anything even remotely effective against its own domestic terrorists, whereas, globally, the perception of the United States—particularly the NSA—is that it is just vacuuming up the personal data and private communications of absolutely everybody else. Most U.S. national security lawyers/intelligence lawyers I know will tell you that, for the U.S. intelligence community, particularly those operating under EO 12333 authority, the general rule of thumb is, “the Fourth Amendment doesn’t apply to non-U.S. persons overseas.” Under that theory, there are no Fourth Amendment implications whatsoever to what NSA or CIA or anyone else under EO 12333 does, as long as they’re doing it “overseas” and aren’t “targeting” U.S. persons.

So then I started wondering, well, how great a legal framework is that in an age of global Internet communications? How do we determine, on a daily basis, whether U.S. intelligence gathering off the Internet is “overseas” and “targeting” only non-U.S. persons? That seems like a recipe for disappointment and frustration all around. And then I asked myself, well, who came up with that rule anyway? Turns out, the rule that “the Fourth Amendment doesn’t apply to non-U.S. nationals overseas” came mostly from the Supreme Court, in a case called United States v. Verdugo-Urquidez. But that case had nothing to do with either the U.S. intelligence community or the Internet, since it was decided in 1990, and it wasn’t until 1990-1991 that Tim Berners-Lee invented HTML and CERN introduced the World Wide Web to the public. United States v. Verdugo-Urquidez had to do with a member of a Mexican drug cartel who was allegedly complicit in the 1985 kidnapping and torture-murder of DEA Agent Enrique “Kiki” Camarena (side note: there’s a fascinating documentary about this whole saga on Amazon called “The Last Narc,” or you can catch a fictionalized version in the Netflix series “Narcos:Mexico”). The DEA ended up searching Verdugo-Urquidez’s house in Baja California in cooperation with the Mexican Judicial Police, and of course they didn’t get a warrant from any U.S. court, because the search occurred in Mexico.

The whole thing started making less and less sense to me, and reading the Verdugo-Urquidez opinion, I got curious about a set of cases the court cites collectively called the Insular Cases—which, incidentally, a whole distinct family of advocates currently denounce as “racist.” They’ve actually gotten the Biden Administration’s DOJ to commit to not citing to these cases in their briefs. Justice Gorsuch is super embarrassed about them, as he noted in a concurrence in the 2022 decision United States v. Vaello Madero. The Insular Cases came out of the Spanish-American War of 1898 and the subsequent U.S. occupation of the Philippines, Puerto Rico, and Guam (American Samoa and Hawai’i were acquired around the same time but not via military conquest by Spain). That was the first time in U.S. history that the United States acquired colonies; i.e., new territories with a dense population of non-white people whom we didn’t particularly want to enfranchise, but who could neither be enslaved (like Africans) nor pushed out of the way (like Native Americans).

How Congress governs “territories” (see, we don’t like the term “colonies,” it doesn’t fit with our national self-image) is a topic that had come up before, however. Before the Spanish-American War, the Supreme Court had wrestled with it in the 1856 decision Dredd Scott v. Sanford (another one that we’re now super embarrassed to talk about), where I think the Court might have sort of set the Civil War into motion by invalidating the Missouri Compromise of 1820. Before I knew it I was examining the constitutionality of the Louisiana Purchase of 1803 (Thomas Jefferson had some thoughts on that), I ran across some scholarship by Native American scholar Maggie Blackhawk (who also has some thoughts on that), and before I knew it, I was examining the 1649 Peace of Westphalia, since apparently that’s where Western civilization came up with the idea of the modern “Westphalian” nation-state system and ruling territory via linearly bounded spaces…except, that’s not actually what was established in the 1649 Peace of Westphalia. Linearly bounded spaces was something the European powers came up with mostly to divide up their colonies.

One Saturday a few months ago, my family dragged me out of the house to go to the Georgetown flea market. While there, I spotted a used copy of Jared Diamond’s Guns, Germs and Steel, which they were selling for six dollars, and I thought, eh, I’ve always wanted to read this, and for six dollars, why not? Well, this book opened up a whole new avenue of thinking for me, and now I’m thinking that U.S. law got off on a bad footing by confusing the advantages and disadvantages of certain spaces with the innate qualities of the people who inhabit those spaces. Moreover, we inherited this confusion from the Spanish, the English, the French, and others, who started conquering the non-Western world, came up with a narrative to explain their success over the indigenous people that emphasized the innate superiority of their own people or cause, had a big fight about it that they then tried to settle in the Peace of Westphalia, kept fighting about it, and then the United States came into existence in the midst of this ongoing fight. Our thinking about territories and the people who inhabit them has been muddled ever since.

So, anyway, I thought initially this could be a nifty law review article, or perhaps a series of articles (?), but now it seems to be turning into a book. I’m starting with Guns, Germs and Steel—basically, the prehistory of homo sapiens as a species—and moving forward until we get to the NSA. The working title is People, Places and Races: From the Peace of Westphalia to the NSA (via the Philippines). Join me on this journey.