Here on A Host of Contributing Factors and across the media cyberscape, debates rage with incredible ferocity and vociferousness about politics and policy without ever really reaching what anyone can honestly call a point.
Here on AHOCF, the debate du jure has been over the legitimacy and consequences of warrantless wiretapping and its many associated concerns. Yet, somehow lost in this debate are the concerns that brought it to light to begin with. The result is that those concerns continue to boil and burn even as we beat ourselves to intellectual death by mischaracterizing another’s views, ignoring the subtleties of another’s points, and refusing to consider that at least some of our own views might actually be flawed, misguided, or just plain wrong.
What results is a debate sans points and many, many questions sans answers. Even in this little corner of cyberspace is gathered a group of people of considerable knowledge, intellect, and logic who have turned those gifts to digging trenches rather than building bridges. No one benefits from more fortifications, but everyone benefits from more dialogue.
I am just as guilty of contributing to this phenomenon as anyone, but I would like to believe that I can be part of the change needed to put and end to it. That change is why I started writing on the internet to begin with. That change is why I gravitate toward asking questions and trying to discern out points of commonality, as flawed as those attempts may be.
So, here again I offer an opportunity, not to beat to death another set of points that apparently cannot be reasonably resolved, but to find those points of commonality and create solutions that are actionable.
Let’s start with the debate du jure: I agree that warrantless wiretapping is not the best method to gather intelligence on enemies residing within the United States because of the risks involved in compromising the liberty of the innocent, however I also agree that the better methods of gathering that intelligence are either not available to our intelligence agencies or are now impractical or impossible to implement. Therefore, we Americans have a very clear problem: Our enemies are operating on our own soil and the apparent solutions to finding and stopping them are not the ones we really want to use. Our choices are clear: Use the methods we have available or find some other way.
Therein lies my question: I am not asking anything other than how do we do what needs to be done if we do not use the methods we have? I do not claim to have an answer, hence the reason that I have come down on the side of using the methods that are available. I believe, however, in the collected group present on this weblog, an answer can be discerned if we try. There is no deception or attempt to trap buried in this question, simply an honest attempt to coax out ideas that may be buried within the collected intellect of the group.
Of course, the moment I end this post, its interpretation is left with the reader. I hope the interpretation is as I intended it. Otherwise, all that is left is to try again.
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16 comments:
In order to find the point between, we must chart the points from which our journey begins.
Now you know my mind. Fully.
Let's talk.
Solution-Oriented...
In direct answer to your question, I provide this. My objection is, was and remains the lack of and/or weakening of oversight by a coequal branch of government. You don't elect a president to be teh CEO. I accept that. I won't elect one to be an unaccountable Tzar (in the original sense) either. I want the constitution's protections to apply. I want American innovation to prevail. I want the FBI to stop acting like a secret police force. And I want the FISA courts to be empowered as they were originally envisioned, as judicial oversight of surveillance for the protection of the constitution.
As I've said: No one has convinced me that FISA places an undue burden on law-enforcement or intelligence gathering. No one has presented any reason why a 72 hour head start isn't enough. Do we need more? Do we need less? Do we need more judges on the FISA bench? What's necessary to alleviate the perceived burden without violating the principles enshrined in our most fundamental governing document?
And the telecoms broke the law. They had obligations they did not live up to. Bush tells me that allowing them to be punished for violating the law would have a quelling effect on future attempts to get them to... what? Break teh law again? Good. Let 'em swing.
Then pass legislation that makes sense, which provides a pathway, oversight and supervision of a process that has festered in the darkness of secrecy.
The problem, as I understand it (please note that this is an understanding and not actual knowledge because we are talking about classified intelligence gathering after all), is that it is impossible to get a warrant in any court, even the FISA court, on a hunch. The problem is that we are playing a game of catch-up in trying to figure out who the enemy even is, let alone where he is and what he is doing.
In that way, the intelligence gathering we need to do is more of the pure science nature than the applied research nature. We need information to even form a hypothesis; we need evidence to even ask for a warrant. Therein, as I understand it, is why warrantless wiretapping is such an important tool for our intelligence agencies right now.
Granted, there should be far better ways to accomplish this same end. In the past, we had human intelligence assets that we could use, however more than a decade of bad intelligence policy has all but eradicated our human intelligence capacity. Again, warrantless wiretapping us being used to replace the very method we should be using to establish cause.
Therein lies my greatest justification for allowing such wiretapping to continue: If we don't, then how do we figure out who the bag guys even are?
Keep in mind that what separates this concern from previous times is that the enemy is most decidedly acting inside our borders in numbers large enough to cause great concern. If we were talking about an enemy on foreign soil, then the situation would be completely different, but they are on our soil and how do we collect intelligence on our own soil without risk?
So, Denny, you see a Catch-22 at work: you can't get a warrant without (some) evidence, and you can't get (any) evidence without a warrant. Hence, warrantless wiretapping -- to produce the evidence necessary to get the warrant to continue the evidence-gathering process to eventually get the bad guys. Is this where the 72-hours comes into play? Are you saying that even a retroactive warrant isn't feasable?
And, Scott: you say "pass legislation that makes sense." What should that legislation say, roughly?
I shall clarify, because before a law can be crafted, we need to know the fundamental premise on which the decision was made in the first place...
Why a 72 hour head start isn't enough? Do we need more time? How much more? Can we do it with less time?
Do we need more judges on the FISA bench to alleviate backlog?
What's necessary to alleviate the perceived burden without violating the principles enshrined in our most fundamental governing document?
The law would have to allow for specified surveillance powers with specifically-applied oversight by a duly-empowered and coequal branch of government. If subpoenas don't work, why not? Fix that.
Hunches? I don't buy that. You cannot enshrine that into law, nor should you. I can't image the NSA is following hunches. I believe they're hoping a scattershot approach, gathering and parsing ("mining" if you will) vast amounts of data will produce leads. And leads will lead perforce to targets for further investigation.
So how much time do they need to get that done? Because I won't sign that blank check.
This idea just occurred to me, so bear with me as I work it out.
I think that the intelligence agencies are using a combination of the hunches I referred to previously and the data mining techniques Scott suggested (the NSA as an example of an agency that does the latter is a good one because the NSA does not have field agents, per se). Either way, the idea is to figure out who the bad guys are and generate the evidence needed to pursue them in some substantial way.
I think that the problem we have in approaching this debate is that we continue to look at it through the lens of law enforcement instead of intelligence gathering. As a result, we continue to look at the problem under the microscope of due process instead of discovery.
Hence my recently realized idea: I believe that the FISA court can play a role in allowing for hunch following and data mining inasmuch as it plays the role of arbiter through judicial review, not in the granting of warrants to take specific action, but in constantly reviewing the causal evidence generation process to prevent abuse.
In other words, agency X gathers evidence through some approved warrantless means, however the law should stipulate that before anything can be done with said evidence, the evidence itself must be reviewed to ensure that it meets the criteria set out under the law.
As an example, evidence of criminal but not militaristic activity would have to be set aside. Evidence gathered against American citizens who were not acting in concert with foreign agents would have to be set aside (this point may have to be clarified and narrowed somehow, but I will not deal with it now). What is left would be evidence gathered against foreign agents acting on American soil against America, which evidence could be used to secure the warrants to take more substantial action.
I grant that the 72-hour window provided by the current law allows for some of that, however it prevents long-term activity that tries to ferret out individuals that manage to beat our self-imposed limits. In other words, our enemies do not act on our timetables which forces us to adapt somewhat to theirs.
Another check on the whole system could be the continued passage of the law with a sunset provision. This sunset would allow for periodic Congressional review of the whole process.
Perhaps what we are approaching here is the establishment of something that does not yet exist (as far as I am aware), which is a judicial agency designed to act as a direct, ongoing oversight of the broader intelligence and law enforcement activities of the government. In that case, the law needs to extend beyond FISA to any activity that the government uses to gather intelligence on individuals or groups.
Certainly, such an agency would be large, but I think its existence would go a long way toward alleviating some of the libertarian concerns that are centered on the current application of these techniques.
Thoughts?
If you're investigating someone to the point where you need to watch them for more than three days straight, at that point I should think that you're beyond the stage of 'hunch' and must needs have something to take to a judge. Even if we extend the window to five days or whatever, the need for continual surveillance on a "long-term (basis) that tries to ferret out individuals that manage to beat our self-imposed limits" indicates to me that you have *something* and if you don't... then you're wasting resources and time.
My concerns about the legal precedents we are setting remain unaddressed. The damage to the separation of powers, the protections from search and seizure, and the history of abuses that have repeatedly cropped up in the administration and execution and even abuses of broadened police powers (such as the FBI's 'National Security Letter' fiasco) do not engender much hope in me that powers given in good faith will be used in good faith.
And, not entirely incidentally...
Despite my misgivings about the FBI's track record, thinking of this in terms of law enforcement should be... well, frankly it needs to be re-examined. Because allowing civilian law enforcement to undertake these steps keeps us out of the sticky territory of posse commitatus law... especially considering the militarization of the leadership ranks of our 'civilian' intelligence services under the current administration.
By way of example:
Chatter gathered from public sources (likely internet chat rooms and websites) indicates a high profile target (referred to hereafter as HPT) has entered the United States by crossing the border with Mexico. All we know about this HPT is that he is of Arab descent and that he is carrying a message to be delivered to someone already in the United States.
More than likely, given past patterns of behavior, this HPT will travel from mosque to mosque on the way to deliver his message, but we do not have enough evidence to monitor any of the suspected mosques because this is only a suspicion.
More than likely, this HPT will take several days to several weeks to make his way to his intended delivery, again based on past behaviors. Certainly, we can monitor the activities of specific individuals or groups for up to 72 hours without applying for a warrant, but without specific evidence, the surveillance ends after 72 hours.
More than likely, this HPT's movement will be facilitated by a variety of persons, some foreign, some not, who will communicate in various ways. We do not know who these people are, therefore we cannot specifically target them for warranted surveillance.
Unless we establish their identity by doing a broad and general sweep of domestic chatter to establish cause. This sweep could take days. This sweep could take weeks. It could never turn up anything. It could nail the HPT by revealing his network of domestic contacts.
Once that network is revealed, once cause can be established through causal evidence, then the agencies trying to track this HPT and capture him must submit for the proper authorities to do so. Without that causal evidence, they cannot do so, and the HPT gets away.
It's a simple as that. That's what this debate is all about. That's what the intelligence agencies are trying to do. That's what we're trying to figure out how to let them do.
We can talk about liberty and abuse of power all we want, but that theoretical HPT and the real ones like him are using our own system against us to our own peril. What is the solution unless it is do do something and at least make the attempt to stop them or to do nothing and just let them succeed. Either way, there are consequences. Which ones are we willing to live with?
Denny, I think there is something in your premise that you need to examine. You made this statement (and statements like it on a number of occassions):
"Therein lies my greatest justification for allowing such wiretapping to continue: If we don't, then how do we figure out who the bag guys even are?
Keep in mind that what separates this concern from previous times is that the enemy is most decidedly acting inside our borders in numbers large enough to cause great concern."
I'm not trying to pick on you, but if we don't know who the enemy is, how can we possibly know how many there are? And if we don't know how many there are, why do we assume that it's such a great number as to cause a great concern?
I'm also curious about something else. You've stated that warrantless wiretapping isn't your preferred methodology. To the extent that any of our yabbering about this makes any difference (and let's face it, it doesn't), why aren't you then spending your time and using your argumentative abilities to lobby for those solutions rather than justifying this one that even you admit is far less than optimal?
Why isn't your argument "put more feet on the street" instead of "let the government listen to what it wants?" Both solutions are a matter of policy, by which I mean they can be voted on an acted upon. So why defend a sub-optimal solution when you can advocate the actual solution you want?
"[W]hy aren't you then spending your time and using your argumentative abilities to lobby for those solutions rather than justifying this one that even you admit is far less than optimal?"
That is a fair question.
Frankly, I have come to the same conclusion as most of our intelligence agencies that those methods are too costly, time consuming, and have their own political unpopularity to be implemented when we need intelligence right now, not in years from now.
The problem is that we know there are foreign agents operating on our soil right now. We do not have the time to wait for the development of human intelligence networks, to develop working relationships with foreign intelligence networks that have insight into our enemies (this failure far predates 9-11, let alone Iraq), or to develop the kind of informed and capable intelligence apparatus needed to effectively analyze the insane amount of technical intelligence we do gather--virtually all of it legally.
Certainly, the optimal circumstance would be to develop these capabilities so as to phase out the less optimal intelligence systems we are currently using. Unfortunately, unlike border enforcement where we could mobilize the National Guard until we trained more agents, we have no corresponding capability in intelligence. Further, we do not have the billions upon billions of dollars that have not been invested into our intelligence agencies since they were eviscerated in the '90s with or without Iraq.
Hence the pragmatic approach. We need capability that we don't have and the only way to get it is inoptimal.
My lobby is this: invest the same amount of money into protecting America from external threats in optimal ways as we seem willing to invest into keeping ourselves socially well and this debate will not be necessary.
"I'm not trying to pick on you, but if we don't know who the enemy is, how can we possibly know how many there are? "
By measuring the ones we've already caught, in some cases by using the very methods that are now under assault.
"By measuring the ones we've already caught, in some cases by using the very methods that are now under assault."
There are two separate flaws to that response.
1) Let's try an analogy. Since Easter is on the way, let's say I hide some unknown (to you) number of eggs. You know I hid at least one and assume I couldn't have hidden thousands, but you don't know the number. Now let's say you use whatever means you want to find the eggs. You find a dozen. How many eggs have I hidden? Did you find them all? How can you answer my question using only the logic of "by measuring the ones you've already found?" Is your answer that I've hidden two dozen? What fraction of the eggs do you assume you found? You can't make the calculation. In fact, I don't think you can even make a reasonably good guess, not because you're not smart, but because you don't have nearly the information you need. Aha, you say. You've got me now. But . . .
2)The methods under assault allow for sweeping taps (not to mention the other illegal initiatives underway that aren't directly related to the PAA and FISA) and other data mining operations. The desire is that they be conducted without warrants and without any meaningful outside supervision. In combination with the administration's already asserted right not to try terrorists within our court system or to have to maintain the same evidentiary burden, what we have is a situation that allows the government to gather information, decide whether it is terrorist related -- in fact, determine the very definition of whether it is -- then take that evidence and charge and sentence the person in question. The person does not get to see the evidence against them. The person does not get legal counsel. The administration has proven that it doesn't want any discussion of the methods or the evidence because it might reveal our methods to terrorists.
By these methods, there is absolutely nothing to keep this or any administration from using this information against its political enemies -- really anyone they define as "enemy." FISA was put in place in response to just this type of abuse when it was discovered that Nixon was using illegal wiretaps to hurt political opponents. By the way, that's another example of abuse by an elite of transparency and checks and balances. We found out, we checked it, and now those checks are being dismantled or weakened.
I don't want to live in a country where thought crime can occur. That is what you are unintentionally advocating. You keep using the words "enemy" and "terrorist" and applying them to unknown people without requiring the process that safeguards against abuse. You are essentially convicting people of terrorism before you know it is true. This is where dealing with abstractions has hurt us. At the end of the accusation of terrorism, there is a person. Until terrorism has taken place, you can't define the person as a terrorist. You are advocating trying to catch each and every terrorist before you know they are one. And IF you know that someone is, in fact, a terrorist (by even a reasonable assessment of the data), then you have enough information to allow for warrants and oversight. The fishing expedition you are advocating is unethical (I don't want to discuss it in terms of shear lawfulness, because the law can be changed even if the change is unethical).
Of course, we want to bring actual terrorists to account. But can we at least make sure they actually ARE terrorists first? That might mean waiting for them to actually act in an obviously terrorist way, but that's part of the risk a nation of liberty takes.
[C]an we at least make sure they actually ARE terrorists first?
How?
You just said we don't know how many enemies there might be. It could be zero (unlikely). It could be thousands.
Mostly, we don't know who they are.
How do we figure out who they are unless we're actively trying to figure out who they are? Such actions require surveillance which cannot be conducted under your methods because we do not know who they are.
As things stand, our only options are to wait until the accidentally get caught (the Millennium Bomber or the six in North Carolina) or after they act (9-11).
What kind of solution is that?
Denny, just as a clarification, you've said that I've mischaracterized your position about warrantless surveillance and picking people off the streets. I did not do so intentionally, but I think you're right and I think I did it even after you clarified twice. Here's what you did say awhile back that morphed in my mind into what I've been attributing to you:
"Such surveillance is intelligence gathering that, by its nature requires us to predict something before it happens rather than responding to it after it does."
And
"Without this tool, we are too often left to wait until the terrorists strike and then to try and bring as many of them to justice as we can. A tool like warrantless wiretapping allows us to look for the terrorists rather than waiting for them to strike."
Retract, if you can, all those places that I've said you're willing to allow people to be convicted before they have been proven guilty. As you've clarified, you're just willing to allow the government to listen in on innocent citizens while gathering evidence on actual terrorists.
"How do we figure out who they are unless we're actively trying to figure out who they are? Such actions require surveillance which cannot be conducted under your methods because we do not know who they are.
As things stand, our only options are to wait until the accidentally get caught (the Millennium Bomber or the six in North Carolina) or after they act (9-11).
What kind of solution is that?"
Not much of one, but I reject your conclusion that without warrantless surveillance, we're helpless against the terrorists. It simply isn't true.
You once said that I shouldn't fear the government listening in on my communications because they couldn't possibly catch it all anyway. Exactly. And we'll never be able to catch all the terrorist chatter either.
When we have reason to believe someone is a terrorist, we should tap the hell out of them to try to stop their plans. And we do have considerable knowledge of the terrorists or we wouldn't be so convinced that they are such a big threat.
We're going in circles. I believe that the ceiling for getting a warrant from the FISA court is so freaking low that we don't need to concede that the government can do whatever it pleases. Hell, the FISA court has only rejected like eight warrant requests in the last 30 years.
You're not crazy for saying we should allow it. You have good reasons, but I don't agree with your conclusion merely because we weight certain factors in the calculation differently. I don't know that either one of us is right or wrong. The terrorists are a threat and unchecked government power is a threat. What are ya gonna do?
"As you've clarified, you're just willing to allow the government to listen in on innocent citizens while gathering evidence on actual terrorists."
I personally am willing to allow for that to happen. Fortunately, the decision is not left up to me, you, or any other one particular person. That is why we have a democratic republic.
In theory, what results from our differing views on the subject is a compromise that accomplishes most of what you want and most of what I want. I have not seen that compromise yet, but I am willing to stand by my position until I do.
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