Law and the Siren Triangle

How legal safeguards fail to prevent collusion between government, media, and defense contractors

By Elliott Ash

Abstract

The Pentagon's military analyst program is just the latest and most barefaced example of the poorly understood iron triangle comprising government agencies, defense contractors, and media conglomerates. This note traces the mutualistic coevolution of the defense industry and the mass media. Statutes and decisions on propaganda, fraud, false advertising, defense spending, and state secrets are explicated and applied to the industries' conduct. The reciprocal relationships between defense and media laws and the behavior of the defense and media industries are examined. Possible avenues for breaking the triangle are discussed, including greater transparency in defense matters and preservation of competition in media markets.

Text

_First shalt thou reach the Sirens; they the hearts
Enchant of all who on their coast arrive.
The wretch, who unforewarn'd approaching, hears
The Sirens' voice, his wife and little- ones
Ne'er fly to gratulate his glad return,
But him the Sirens sitting in the meads
Charm with mellifluous song, while all around
The bones accumulated lie of men
Now putrid, and the skins mould'ring away._

-The Odyssey of Homer

Introduction

In May 2008, New York Times readers were introduced to the U.S. Pentagon's Military Analyst Program (Barstow 2008). David Barstow's feature article detailed a seedy web of conflicted interests, where retired Pentagon officers held triple roles as employees of the Pentagon, directors of defense contractors, and military analysts at television news networks. In their role as military analysts, these individuals provided rhetorical cover for the government, justified profits for the defense industry, and provided content for television networks with inordinately expansive broadcasting schedules. On the news networks, they were presented as independent analysts. Their personal and financial ties to the government, the military, and private defense contractors were not disclosed to viewers.

How did this happen? This paper will attempt to model the various social, political, and economic forces The corruption linking the government to the media to the defense industry is an intertwined mess of tendrils. Gluttonous defense spending is doxa (Bourdieu 1977, ch. 4), unquestioned and encouraged by the media.

The Political Economy of the Siren Triangle

• Following Higgs (2006) and Gintis (2006), institutional actors will be examined using an evolutionary game-theoretic model, in which rational actors seek to maximize utility subject to beliefs, preferences, and constraints. Institutional actors are collective entities with a more-or-less decentralized decision-making apparatus, decision strategies will be characterized by significant degrees of noise and stochasticity (Bentley et al. 2007).
• Institutional Modeling

Understanding institutions and predicting outcomes of institutional interaction require an analysis of their preferences and constraints that serve as inputs to institutional decison-making. Some institutional agents have unity of purpose across their constituent components; others do not. The similarity of preferences across constituent agents influences the degree to which conglomerate institutions can be treated as unitary decision-makers. Individuals and firms making economic decisions are generally considered to have relatively unitary preferences--those preferences consist in maximizing economic returns. There are serious problems with treating economic actors as unitary agents, but those problems are even more salient when dealing with non-economic actors, such as government agencies. Assuming the preferences of a legislator is relatively simple: He gains pecuniary and other benefits from his employment at the legislature, so it is assumed that he wants to remain in office. This preference assumption is rich with predictive implications: notably, short-term and long-term strategies at preserving electoral victory. Campaign advertising, buying off constituents, and manipulating electoral boundaries might be examples of such strategies. The pursuit of these preferences will of course be constrained by the preferences of other legislators. Because these strategies will differ significantly between electoral districts, examining the preferences of the legislature as a whole is far more problematic. Treating it as a unitary agent, it is unclear what exactly a legislature's preferences and goals would be. From a democratic theorist's standpoint, it is hoped that the emergent result of each legislator pleasing his constituents will result in the interests of the nation as a whole will be furthered. Then again, treating the nation as a unitary agent with cognizable preferences is even more problematic than doing so for the legislature. Preferences vary considerably among the electorate's constituent individuals.

• Components of institutional modeling
  • Biological motivations, constraints on human knowledge, physical and emotional constraints on behavior
    • Ideological barriers to information
    • Beliefs themselves might be a source of utility.
  • Technological and cultural constraints on individual behavior
  • Information costs associated with producing, transmitting, and processing information, manipulative or otherwise
  • Economic and ideological goals
  • Temporal constraints -- individuals have a lifespan; institutions do not
  • Legal regulation of institutional behavior
    • The law operates on the individual and on the institution.

The Political-Military Establishment

• Constitutional protections of privacy notwithstanding, the government has virtually unlimited access to information.(cite)
• Benefits of war for the government: Kellner 1992 at 387.
• Democratic constraints -- elected officials must seek reelection. This constraint is weakened by the benefits of incumbency and gerrymandering, and collusion between the incumbents of existing parties. Probably more powerful than the reelection constraint is an election constraint. Most individuals are outside the population subset that would be considered for office in the first place.
• Legal constraints
  • Nominally, the government has to follow the law.
  • Laws allowing the preservation of confidential government secrets undermine these constraints.(Schmitt and Mazzetti 2008)
• Constitutional/judicial constraints

The Media

• Journalistic ideology -- Many of the reporters working for the media have beliefs that run counter to the profit-making mission of their employers. Those beliefs--that truth is more important than profit, and that a press is democracy's Fourth Estate--interfere with the corporation's amoral belief system (Herman 2002: Ch 1; MacArthur? 1992: 20).
• The obvious irony here is that the media, supposedly a cornerstone of the siren triangle, blew the whistle on this program. However, the main thesis is confirmed by the fact that broadcast media have blacklisted the story, while the Times and other print media have mostly ignored it. The story can also be explained in light of the agency noise characteristic of the media as a collective industry.
• Individual journalists have an ideological preference for the pursuit of truth, but their editors and owners have monetary preferences.
• Media Consolidation
  • Enabled by Telecommunications Act of 1996?
  • Naturally, media consolidation has reduced the noise produced by journalistic ideology and rationalized the media industry's preferences in line with the profit motive.
  • On the one hand, it could make regulation of the industry easier. But it also makes controlling the message easier--you have to buy fewer political advertisements.
• News budgets. Consolidation has reduced news budgets as media conglomerates seek to maximize profits.

• http://thomas.loc.gov/cgi-bin/query/z?c104:S.652.ENR:
• Jessica Lynch and Pat Tillman.
• Retroactive immunity given to telecommunications corporations in 2008.

The Defense Industry

• The preferences of defense contractors can be reduced to the profit motive. But the defense industry is a peculiar economic entity. They deal mostly or only with governments. This opens up lobbying to be an important instrument to pursuing goals. They would also want international arms trade regulations to be loosened, so sale of arms can be made with foreign governments. Most hazardously, defense contractors benefit from warmaking.
• The laws regulating defense industry conduct include government procurement rules, lobbying rules, and export regulations.

The Siren Triangle

Because they share interests and instruments, the consolidated agencies of the government, the media, and the defense industry can be conceptualized as a single entity, the siren triangle. Because an even greater amount of complexity and agency noise is evident here, the predictive power of rational-choice hypotheses is reduced.

• A useful starting point for examining the siren triangle's utility function is overlap in the components' objectives. It is a plausible hypothesis, for instance, that the siren triangle gains utility from warmaking.

• We spend more on the military than the rest of the world combined. We also spend more on the media industry.
• The Siren Triangle is not a conspiracy, with deliberate intent on the part of the actors to conspire against the public interest. Rather, the Siren Triangle is an emergent phenomenon of decentralized social processes, where self-interested activities by separate entities combine into a triangular feedback loop (See Herman and Chomsky 2002 at xi).

• Arms races
  • Between politicans. Candidates spend more. Offices grow (Kolko 07?).
  • Between media companies. Media companies compete for viewers. Result: huge expenses for worthless technology (ex. doppler radar)
  • Between military agencies. US builds astronomically expensive weapons that are practically worthless (Kolko 07 at 91, 93).
  • Between institutions and public: Public develops safeguards against abuse; institutions develop work-arounds; repeat.

• The political distortions initiated by the defense industry persuade agents in the government to benefit the defense industry to their own detriment. Government entities (and the media) are highly distrusted as a result of the wars waged on behalf of the defense industry. Vietnam backfired. In Gulf War I, the violent victory was not enough to guarantee Bush Sr.'s reelection. After Gulf War I, defense spending decreased dramatically--but America's participation in the arms trade remained the highest in the world. September 11 and the subsequent War on Terror enabled significant increases in defense spending. The War in Iraq backfired in the same way Vietnam did--Bush Jr. prevailed in 2004 in spite of, rather than because of, the War in Iraq, and even then only by conflating the War in Iraq as retribution for the September 11 attacks. Meanwhile, while media consumption did increase at the beginning of the wars in Iraq, there was a relatively larger spike in response to September 11. The different fates of Bush Sr. and Bush Jr. suggest that invasion of other countries does not serve the interests of government and media actors as well as an attack on the homeland does.
• Evidence indicates quid pro quo between government and more influential contractors. (Fleisher 1993; Karpoff 1999)
• Congressmen vote for obsolete programs, unneeded ordnance, and useless military bases because the actors in those programs are important constituents.
• Americans end up with weapons that don't accomplish healthy goals but are murderous to civilians (Kolko 2007 at 18-23; Herman 2002 at xxx)

Historical Analysis

The Great Depression and World War II

• Higgs 2006
• Military Keynesianism (Cypher 2002; Cypher 2007)

The Cold War and Vietnam

• Kolko 2007
• Herman and Chomsky (intro, Ch. 5-6)
• Defense-industry R&D funding facilitated growth and consolidation of media industry (Cypher 2002)
• General Electric and CBS own defense-industry assets (Kellner 1992)
• Agent orange

Gulf War I and the 1990s

• After Vietnam, the military-industrial complex needed a war to demonstrate the effectiveness of its weaponry (Kellner 1992: 138). The Bush I administration actively blocked efforts to resolve the conflict with Saddam diplomatically (Kellner 1992 at 30).
• Kellner 1992: 384-88
• "Smart" bombs

The War on Terrorism

• Kolko 2007
• Abu graib
• Guantanamo
• NSA surveillance

Discussion

Information Transmission

Lieberson (2002) demonstrates that transmission of aesthetic preferences has its own internal logic. The transmission of knowledge has its own internal logic. Some of that is based on human psychology: Some messages are more salient than others as a result of our brain structure (Boyer 2001). Humans appear to prefer truth to falsity, and also the appearance of truth over the appearance of falsity ([cite]). What other neural mechanisms guide capture and transfer of information? Whatever they are, these evolved mechanisms for information processing are manipulable. Many organisms, including humans, manipulate others to the manipulator's benefit (Dawkins 1982). This process will inevitably result if an entity 1) would benefit from such manipulation, and 2) it has the communicative tools to successfully undertake the manipulation. Humans do this to each other on a daily basis, with varying results. Institutions have their own emergent self-interest, and if they have the tools to manipulate humans and other institutions to their benefit, they will do so. Governments and corporations are prime examples of this phenomenon. Congress will benefit if Americans think that there are no agency costs between citizen and representative--thus, "We are the party of the people." Media corporations will benefit via higher ratings if viewers think they are in danger and that the corporation's media product will give good information about avoiding that danger. This analysis puts the lie to the standard establishmentarian refrain that advertisements provide "information" about products. That is self-evidently false. Advertisements are disinformation--they are manipulation of the viewer's brain. The actors in the Siren Triangle--the government, the media, and defense contractors--are actively manipulating the public sphere to facilitate the production and reproduction of messages that strengthen the Siren Triangle.

Why isn't U.S. militarism a scandal?(Adut 2008) The power centers in the American public sphere, which consist of, and are manipulated by, the actors in the siren triangle, benefit from aggressive U.S. military policy. Those who bear the costs are many and face high coordination costs. They don't own the media, so they cannot disseminate inciting information easily. The beneficiaries of U.S. militarism are concentrated among a few individuals who coordinate easily; costs are diluted, low for any particular individual but enormous in sum. These individuals are communicatively--and often politically--disenfranchised, especially those in foreign countries. Oligopoly in the media industry and duopoly in the political system facilitate manipulation of both industries by siren-triangle beneficiaries.

As Adut emphasizes, scandal does not increase gradually in a linear relationship with moral violations. Instead, certain catalytic events induce tipping points (Gladwell 2000)

Agency Costs

The Siren Triangle is founded upon the circumstance that the agents in charge of the country do not share the goals and incentive structure of the public. What the public wants the government to do is miles away from what the governors want the government to do. Media companies and defense contractors are quasi-public entities, and their incentive structures are not aligned with the public's.

The other problem is that while the benefits of the Siren Triangle are fully internalized by the three entities, the costs are distributed over the whole American electorate and, more crucially, citizens the world over. As far as the American citizenry goes, the coordination costs required to organize an effective populist campaign against the components of the Siren Triangle are preventative. But while Americans at least can vote with their ballots and their eyeballs, the rest of the world is out of luck. The costs that are imposed upon other countries are irremediable; neither the US government, the media, nor the defense contractors have to answer to the complaints of foreign citizens.

Scholars who complain of quid pro quo between politicians and defense contractors frame the relationship as that between buyer and seller: The defense contractor buys the vote. Empirical evidence shows that this is the wrong explanation. Instead, defense contractors support those candidates with preexisting ideological predispositions in favor of defense spending. The funding and support helps those candidates ascend to political power, and primaries and elections are just the final processes. Once defense-contractor-friendly individuals are in office, those predispositions are reproduced through path-dependent processes--specifically, those politicians hire and support new politicians with similar views on the defense industry. This process might explain why defense contractors donate to both democrats and republicans in electoral races. A better empirical test would involve examination of defense-contractor donations during primary season; the hypothesis being that the primary candidate that most supports defense spending will receive greater establishmentarian support by incumbent politicos, defense contractors, and media outlets. That candidate will be more likely to gain the nomination. Moreover, the election of the pro-defense candidate touches off an autocatalytic process whereby that candidate pulls the mean opinion toward pro-defense in the candidate's party and in the legislature. His incumbency will allow him to campaign effectively on behalf of militaristic candidates in future elections. The candidate is more likely to give sweet contracts to defense contractors, which will increase their cash flows, allowing them to donate more aggressively to militaristic candidates in future elections.

An analogue is the broken promotion process in the intelligence community elucidated by Kolko (2007). Blindly optimistic interpreters of intelligence were promoted by politicians who refused to see failure in Vietnam. Also, Neocons did not cause America to be militaristic; Neocons were hired because they were militaristic (Kolko 2007 at 97-98).

Military Technology and Intellectual Property

Military technology is a peculiar category of intellectual property. When embodied in a weapon, it does not produce net utility. Military technology schemes:

• Free sharing of military technology.
• Preservation of technology, sale of weapons
• Preserving technology and weapons.
• Agreement not to weaponize technology.
• Agreement not to pursue military technology (article on dual use: Guichard 03)

• Eli Whitney's replaceable parts. (Lehman 1996 at 8)
• Military technology was repeatedly monetized throughout the last century (Cypher 2002).

Solutions

From a legal perspective, the Siren Triangle is a complicated problem. The tangle of corrupt laws that enable and feed the triangle are numerous, and they aren't all in the most obvious places. From a sociological perspective, the problem is even more complicated: Not only do you have to promulgate the regulatory changes just discussed; you have to make fundamental structural changes in how the government and society function in order to get them passed into law and followed correctly.

What I have called the "sociological" perspective is not meaningfully distinct from the "legal" perspective. Figuring out realistic measures that could help cure the Siren Triangle is just taking a broader legal perspective; the difference being that you recognize that all functions of government and society are fair game for reform. In dealing with broad inertial problems like the siren triangle, it serves to distinguish endogenous from exogenous variables. On a short time frame, one might say that "law" is an exogenous variable, and solutions must work around it. On a longer time frame, laws become endogenous because the actor can take deliberate measures to repeal or reform them. As the problem's time horizon increases, more variables become endogenous and thus instruments toward solving the problem, things like wealth, technology, prejudice, corporate incumbency, etc. In the very long run, even apparent monoliths as constitutional provisions and the human genetic code become endogenous.

The lesson of this discussion, I think, is that dealing with the Siren Triangle requires both short-term and long-term strategies. The short-term should deal with more realistic regulations such as closing the revolving door, prosecuting violations of existing propaganda laws, and increasing government transparency.

More long-term solutions might involve reversing supreme court holdings on executive privilege, the commander-in-chief power, government transparency, freedom of the press, and restoring the requirement that Congress declare war before the executive engages in armed conflict against enemy states.

• Decision on FTC case preserving media consolidation as freedom of the press
• Constitutional norms are not exogenous

Outside of legislation and interpretation, we need institutional reform in media and defense corporations, and in academia.

• International law scholars are looking in the wrong places.

Even more long term, we can relieve pedagogical and genetic limitations on human cognition and morality that contribute to problems like the siren triangle.

TSTSourceQuotes

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Cases

Subject Legend:

• G = Government/Military
• C = Defense contractors
• M = Media
• MAP = Military Analyst Program