More on NSA and Posner Posted by Michael Signer

This is a response to Mort's response to my discussion of Richard Posner's sort-of defense of the NSA wiretapping.  One of the benefits of the Democracy Arsenal crowd is we have folks like Mort who can write things like the following:

I worked hard to get FISA passed in the 1970s because I believed that the government needed to conduct electronic surveillance for intelligence purposes and that it should be done pursuant to a statute and with the court involved as appropriate.   The Ford and Carter administrations identified four situations in which a warrant should not be necessary (emergency, war for 15 days, certain embassy taps, and testing) and they were all included in the bill.

The most I could say along these lines is that, while in my short pants, I considered the implications of the downfall of a President whose second inauguration occurred in the month of my birth.  Mort concludes:

It is impossible to tell if some additional authority is needed since the administration not only did not ask for, but affirmatively said it did not want it.   If after 9/11 NSA needs more authority under FISA or even some additional emergency warantless authority it should say so and we should have that debate.

We cannot have it until we know what they want.  In the meantime we must insist that the law and the constitution be obeyed.

Well, I agree.  I was citing Judge Posner's argument, really, for the sake of argument.  Obviously, laws can't be broken -- and you don't even have to add the modifier "with impunity."  They just can't be broken.  That's what the rule of law is all about. 

Perhaps even more powerfully, you cannot have the executive branch of government making decisions about when the rule of law applies unilaterally, without judicial review or legislative pre-approval.  It's a gross violation of almost every principle of American constitutionalism.  So, yes, it appears to be against the law.  This may well rise to the level of impeachability.

However.

Everything that I have just written does not get at an important, and different,  point.   As F. Scott Fitzgerald said, "The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function." 

One might say the same thing about progressives today.  The question is whether we can we hold these three opposing ideas in our collective head:

(1)  The Administration's wiretapping is unlawful and potentially impeachable.

(2)  There may have been substantive, non-crazed reasons for them taking these actions

(2 1/2)  Anyway, the American people have to understand that we care  just as much about protecting the country, and preventing future terrorist attacks, as conservatives do.

That's the question.  From what I've been reading (like this illuminating article in Slate), there are real technological and data issues that made warrants not just difficult to get, but not really possible.  If you have a constant stream of thousands of bits of data, in which you're searching for patterns, no single one datum has the discreteness that would cause it to be considered a "case" for the sort of review that would be required by the FISA process.  At the very least, that's a technological and communications development that progressives must be on top of. 

Obviously, these developments (as Mort rightly argues) would demand Congressional amendment of FISA -- and the crafting of judicial rules (as Posner suggests) to protect American's constitutional rights.

But this leaves untouched the political problem.  Progressives have to understand what we're dealing with before we can gain credibility to propose how we would have dealt  with intelligence in order to protect the country.  Even if the following, written by Judge Posner, isn't true, progressives need to understand and be able to talk clearly about why it's not:

Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets. Warrants are for situations where the police should not be allowed to do something (like search one's home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove.

The American people are following Fitzgerald's suggestion and holding the three ideas in their heads.  See an NBC/WSJ poll released today:

On the politically charged subject of domestic wiretapping, 51 percent approve of the administration’s use of these wiretaps — without a court order — to monitor the conversations between al-Qaida suspects and those living in the United States, compared with 46 percent who disapprove. However, 56 percent say they’re concerned that such wiretaps could be misused and could violate a person’s privacy.

If progressives can't answer such a split and nuanced view with our own strongly-held and well-informed opinions, the people won't trust us to protect the country.   

Comments

[Dan Kervick]

Michael,

Let me respond to some of these points, and in a more temperate way than last time.

(2 1/2) Anyway, the American people have to understand that we care just as much about protecting the country, and preventing future terrorist attacks, as conservatives do.

It is true that we all care a great deal about protecting the country from future terrorist attacks. But I have encountered a number of people who, it seems to me, are prepared to give up almost every other thing Americans value in order to prevent those attacks.

Now I would would say that a fair reading of this situation is that, while we all care a great deal about our safety and security, and about preventing terrorism, some care much more about it than others do. Some are thoroughly obsessed with it. Similarly, while we all care a great deal about preserving liberty, some care much more about it than others. We are not "all the same" in the intensity of what we care about. We differ. And the only way to measure the degree of care about any value is in terms of how much of competing values one is prepared to exchange for the former value.

If there are some security-obsessed individuals out there who wish to say that I do not care as much as they do about preventing terrorism, then I am willing to accept their characterization. I don't want to be the victim of a terrorist attack, but apparently I don't care as much about preventing these attacks as does the paranoid securitarian who crouches cowering in a bunker, and is willing to let the goverment do whatever it needs to do to prevent those potential attacks. And if I say of them that they do not care as much as I do about preserving liberty, my characterization is equally fair.

You may have seen this ad that ran in the NY Times today, and that Steve Clemons posted on The Washington Note last night. Now, I am absolutely sure that, as much as I want to prevent another terrorist attack, I do not care quite as much about protecting the country from future terrorism as the people who commisioned and promoted this loathesome image, or the people who respond positively to it. I am not embarrassed by that position, and see no reason to run away from it. Rather I think it is those who are so fanatically obsessed with security and safety who should be embarrassed, and ashamed of their inability to answer the demanding call of the American tradition of freedom. To live in the open air, and live the life of a free person, you have to be willing to be less safe. No amount of double-thinking embrace of nuance, or the supposed holding of incompatible ideas by advanced minds, can totally avoid this uncomfortable fact.

On the politically charged subject of domestic wiretapping, 51 percent approve of the administration’s use of these wiretaps — without a court order — to monitor the conversations between al-Qaida suspects and those living in the United States, compared with 46 percent who disapprove. However, 56 percent say they’re concerned that such wiretaps could be misused and could violate a person’s privacy.

There is hardly anyone to be found who is opposed to wiretaps of the conversations of al-Qaeda suspects. But it is quite clear to anyone who has read the news reports that the wiretapping that has caused all the fuss goes beyind tapping the communications of suspects. The fact that the poll frames the issue in this way - and characterizes the administrations practice of tapping communications while avoiding court orders as a tactic for spying on suspects - shows how confused the public, and the pollsters who measure them, are at the present time. This is no time to be listening to polls. We are still in the education and consciousness-raising stage.

The public's attitudes on this issue, as on so many issues, are hardly "nuanced". They are confused and conflicted and convoluted, and and reveal how ill-informed people are about the values and facts involved. Again, it is not enough for progressives to just read the polls, and match their views to the public's views. That is a strategy for perpetual degeneration into incoherence and vapidity. They must take principled positions and then persuade the public they are right. Look at what happened in the Social Security debate. If we had listened to the initial polls, we would have caved right away and lost the battle before a shot was fired. Instead, a lot of enterprising bloggers and journalists did a lot of homework, and them moved public opinion to a more informed place.

People have come to love the word "nuanced" these days. And there certainly is such a thing as genuine intellectual subtlety and nuance. But more often than not, the word is used in contemporary political discourse to mean little more than "a little bit of this, and a little bit of that". The supposed "nuanced" view is often only the confused, cognitively disordered double-think that characterizes the typical, indolent consumer of the intellectual junk pumped out of the noise tubes by our depraved media culture.

From what I've been reading (like this illuminating article in Slate), there are real technological and data issues that made warrants not just difficult to get, but not really possible. If you have a constant stream of thousands of bits of data, in which you're searching for patterns, no single one datum has the discreteness that would cause it to be considered a "case" for the sort of review that would be required by the FISA process. At the very least, that's a technological and communications development that progressives must be on top of.

I believe the issue of technology is a red herring in this debate. The fact that fancy computer systems are involved mesmerizes people, and keeps them from recognizing that the fundamental issue is as old as the Republic. Imagine an analogous argument made in the 19th century: "Rebel confederates who are part of the same conspiratorial group tend to use similar literary tropes, vocabularly items, salutations, and even pen inks in their letters. Yet generally, no single letter will reveal the existence of a conspiracy. But if many hundreds of thousands of letters are subjected to statistical philological analysis, the existence of a conspiracy many emerge. Thus we must open many hundreds of thousands of letters to find the rebels."

This hypothetical case is not different from the contemporary one in any substantial way. In both cases, a technique or technology exists for analyzing the data and finding evidence of criminal activity in it - in one case the technique involves statistical methods employed by human analysts. In the other case, it involves computers.

The problem is that, in each case, the recommendation is that one conduct a fishing expedition - that one invade the privacy of many, many people, almost all of whom are innocent, and search their communications, without any probable cause that those individuals themselves are involved in criminal activity. The problem is that in both cases, technological means aside, you have no evidence of anything until you violate the privacy of many people who are not even close to being suspects, and analyze the results. And I always thought Americans were agreed that these sorts of fishing expeditions were wrong.

Now one might say: "Yes, but in the case of computer analysis, the technology has progressed to the point where it is now much more efficient, reliable and speedy, and has a much higher likelihood of success." Perhaps, but this seems like an odd argument form a constitutional and legal point of view. If some search technique violates the legal or constitutional rights of Americans, it does not become legal or constitutional by virtue of its technological enhancement. If, for example, it is wrong to enter private homes arbitrarily, without either a warrant or prior suspicion, and search for drugs with drug-sniffing dogs, then would it become constitutional and OK if we genetically engineered a breed of dogs whose ability to sniff out drugs was uncannily accurate? I wouldn't think so.

[J Thomas]

We don't actually know what the NSA is doing. We guess. General Hayden says that they actuslly don't have the capabilities we have guessed they do. Do you trust him? Is there any way we could tell what's going on short of taking his word for it? He didn't actually say what's going on, he only said a few things weren't going on.

How can a democracy make reasonable decisions without any information?

Hayden hinted that the timing of messages was more important than the content. Imagine this approach: A known terrorist spammer sends the same spam to 50,000 addresses.

Title: Increase your penis size with new penny stocks!

Body: Several Companies have been competing for your m0rtgage
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Most spam filters catch it and throw it away. But a hundred known terrorists make phone calls immediately after receiving the spam.

Wouldn't it make sense to look at the 49,900 others to see whether they made phone calls right after they downloaded the spam? And the ones who do enough suspicious things would be worth more careful investigation. But how can you present this sort of information to a judge as legal evidence? And right about the time you've finished explaining the whole thing so a judge can understand it, the ops guys will come up with an entirely new tracking method and you'll need to explain that one.

We can't even get started thinking about what the laws should be until we have an idea what's going on. Can we? Suppose you download mail and then you make a phone call at the wrong time. They'll think you're a terrorist and they'll look at more of your stuff. Your computer probably has a trojan, installed by whoever, and they can figure out how to exploit it. They look at your porn collection and your drink recipes and your libertarian rants and conclude that you are not an extreme islamist. So they put a note in your file that you're a dead end and go on to something else.

Should they have checked you out? Is there any way to check you that doesn't violate your privacy?

Could law enforcement get their hands on this technology? Suppose they suspected you were a bookie. Or a drug dealer. If they happened to check your porn collection in detail while they were looking for your bookie files and they found a photo that looked like child porn to them, should they arrest you for that?

But if we knew what the government was capable of doing, so would the terrorists and they'd look for more secure ways to communicate. So we can't even discuss where the limits ought to be, except hypothetically.

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