Laws of surveillance

The United States of America faces a difficult and ongoing issue that was brought into dramatic focus on 11 September 2001: agents of foreign enemies are operating on American soil with the intention of killing American citizens, and in great part, the government does not know who they are.

Whether or not the current struggle represents the beginning of a long war against fundamentalist Muslim jihadism or a short-term fight against a flare-up of terrorist activity by the same, the United States has a problem: First, it has enemies on its own soil. Second, its laws are not adequate to deal with the existing threat.

In 2001, President Bush decided to address part of that problem by authorizing warrantless surveillance in order to discover who the enemies were and then pursue lawful actions to stop them. This authority was derived from well-established and historical precedent established by many previous administrations and in is in keeping with the actions of administrations throughout American history in dealing with crises that threaten the Republic.

This authority also represents a temporary and constitutionally difficult solution that is far better resolved by better-crafted laws targeted at dealing with the nature of the issues at hand. If there is any mistake in the administration’s handling of these issues, it has been that it did not aggressively pursue legislative remedies to these issues far sooner.

Now, the administration and Congress have no choice. The methods the administration was using have been compromised and legally challenged. In order to resolve these issues, the administration and Congress must craft laws that simultaneously protect the American people from potential abuse and also grant the intelligence agencies the ability to discover who the enemies are so those enemies can be stopped.

Unfortunately, it seems that the politicians and thinkers responsible for crafting such solutions are too fixated on politics to fulfill their obligations. This fixation seems to be a national infection, which results in no solutions being presented even as the threat continues and, perhaps, even grows.

In an effort to counter that infection and help guide the national discussion in a direction that may lead to solutions, here are presented several ideas that can form the basis of those solutions.

First, any law that is created must ensure that the liberty of the American people is preserved to the greatest extent possible and that the Republic is defended so that this liberty can be enjoyed. Therefore, the intelligence agencies must be granted the ability to establish causal evidence against enemies of the United States, but they must be constrained from using that evidence for any other purpose than cause by continual and practical oversight. The most effective way to accomplish this end is to create a function, probably judicial, that reviews gathered evidence and certifies it for legitimate use as causal evidence against agents working militarily against the United States on behalf of foreign enemies.

Second, any law that is created must protect intelligence sources, methods, and means from disclosure to protect intelligence agents and those cooperating with them. Specifically, this law must exempt those who cooperate from civil liability over the collection of causal intelligence in order to ensure continued cooperation for that purpose.

Third, the law must clearly state that any punitive action requires the securing of warranted surveillance and authority to act as clearly established by the Constitution. Due to the sensitive nature of these warrants and resulting cases, federal jurisdiction must be clearly established over them, the FISA court must be greatly expanded to accommodate the legal function of the intelligence services in this capacity, and a parallel court must be established to handle cases resulting from this activity.

Fourth, any law must be clearly set to expire on a regular basis, forcing the existing administration and Congress to review the law for applicability and flaws.

Finally, any law must specifically and explicitly apply only to the gathering of causal intelligence against agents of foreign enemies acting on American soil; however, this law must apply to the activities of both foreign nationals and natural citizens acting in this capacity.

This list is neither exhaustive nor complete. Such a law is very complex due to the nature of the problems it deals with and must be carefully crafted before it is implemented. This list simply gives a place to start the conversation, one that will hopefully happen quickly and for the benefit of the United States and its citizens.

-=DLH=-

Cross-posted on Dennis L Hitzeman’s Worldview Weblog

Laws and surveillance redux

[T]hat government of the people, by the people, for the people, shall not perish from the earth.

-The conclusion to the Gettysburg Address, President Abraham Lincoln, 1 June 1865

The Civil War was the greatest Constitutional crisis the United States ever faced, not just because of the obvious schism of the Republic, but also because of the things the government of the United States, including President Lincoln, decided to do to weather the conflict. Yet, even in the midst of that crisis, the goal of the Union was always clear: to preserve the Republic against forces that would destroy it from within and from without.

That effort was a difficult, costly, and bloody one. Things were said and done during that effort that still reverberate through American society one hundred forty three years after it ended. Broad wounds left from that effort took decades to heal. Some scars are still visible, and some argue that those scars have not completely healed.

In 2008, new threats loom against the Republic both from within and without. Much like the government of 1861 discovered, the counters to these threats are neither always clear nor always the best. Unfortunately, as with all threats in all times, the government of the United States in 2008 must respond with the resources it has available to it, not the resources it wishes it had.

The chief role of the Executive of the government of the United States is to preserve the Republic. Without the Republic, there is no Constitution, there are no citizens, there are no liberties, there are no laws. In 2001, President George W Bush, seeking to fulfill his role against the threats he and his administration perceived as arrayed against the Republic, authorized the warrantless surveillance of individuals in the United States believed to be operating in a military capacity against the United States in cooperation with foreign enemies.

According to the Congressional Research Service (.pdf, 44 pages), every President since Franklin Roosevelt has asserted the right to and used warrantless surveillance against perceived threats to the Republic. Since the Carter administration, warrantless surveillance has been a regular part of every administration’s actions to counter terrorist threats. Warrantless surveillance against agents of foreign enemies is a well established and well documented method for countering the threat these agents possess.

The matter at hand in the several posts on A Host of Contributing Factors has been whether or not the President violated established law by using warrantless surveillance to gather information on the activities on fundamentalist Muslim jihadis working on behalf of al Qaeda and other similar organizations and--I am speculating--working on behalf of some nations against the United States.

Empirically, I do not believe this violation has occurred, for the very same reasons that Lincoln, Roosevelt, Carter, Clinton, and Bush did not believe they had occurred. I believe these violations have not occurred because there is a well-established and historic body of evidence saying that the current administration has acted in accordance with the actions of many previous administrations in dealing with threats against the Republic in times of crisis.

I believe that the current problem that lies before the administration and Congress is that the current body of law that exists to describe the bounds of this well-established and historic authority of the President did not anticipate the contradictions within that body of law itself. A particular portion of this contradiction is granting immunity to telecommunications providers when this authority is exercised. This immunity is important not just to protect telecoms from liability for cooperating, but also to prevent the disclosure of sources, methods, and means in open court, thereby compromising active intelligence operations and personnel.

I also believe that this method of collecting intelligence against foreign agents is the worst solution to a very complicated and ongoing problem. The administration has made countless decisions in implementing and carrying out this program that would have been far better done through better legislation and its accompanying oversight. I have and continue to advocate for those better solutions even as I grant that the existing solution must be allowed to continue until those better solutions exist.

Further, I believe these solutions are necessary because, like any conflict, the current conflict is not isolated to a single front. Certainly, fighting our enemies in Afghanistan and Iraq has substantially reduced those enemies’ ability to bring the fight to us, but they still have some capacity, and it is that capacity these solutions are designed to protect against. In the same way that Civil Defense was organized to combat the domestic threats posed by America’s enemies during World War Two and the Cold War, so these solutions in conjunction with law enforcement combat the domestic threats posed by our enemies now.

I think the problem that has presented itself in the warrantless surveillance debate and is repeated in so many of the debates surrounding the actions of the current administration since 2001 is that one side in the debate typically demands that the other side concede or agree to some significant point before any further debate can be had. As a result, there is no opportunity to move beyond the point of concession because these are often fundamental points that the other side cannot concede.

I do not and will not concede that warrantless surveillance has violated the law, nor will I ask anyone who believes that such surveillance does violate the law to set aside that belief before I am willing to discuss better ways to solve the problems of collecting intelligence against foreign agents on American soil. I also grant, even with as strongly as I state my position, that I may still be wrong; however, I believe that the case for my being right is compelling and I will stick with it.

If those who believe that I am wrong wish to pursue their conclusion to its logical course, that is their right, even their Constitutional responsibility. I find that such a pursuit is destructive in a time of conflict, but I concede that our nation is capable of enduring even that kind of destructive behavior if it sets its mind to it.

In the mean time, my greatest wish is to move beyond the “Bush lied, broke the law, knows the size of my underwear…” debate to come up with solutions to the problems that remain whether anyone concedes or not. It is clear to me that our government and its supporting appendages in think tanks and like organizations are so fixated on one problem that no one is coming up with solutions. In the same way that the border with Mexico remains unsecured because of the Washingtonian fixation on comprehensive immigration reform, so the United States remains vulnerable to the actions of the agents of foreign enemies because one side of the debate wants someone to go to jail.

If someone going to jail is the solution to this impasse, then fine, I volunteer. In the meantime, let’s concentrate ourselves on finding solutions to this mess before it really does destroy the Republic.

-=DLH=-

Of laws and surveillance

Now, O king, issue the decree and put it in writing so that it cannot be altered—in accordance with the laws of the Medes and Persians, which cannot be repealed."

Daniel 6:8

In his post “Code Violations”, Scott asked some pointed questions about the legality of the telecommunications companies’ cooperation with warrantless surveillance with regard to the law as contained in the United States Code. The appeal made in the post was, in my view, to the inviolate nature of the laws that these companies and the current administration purportedly violated and how this violation proves the wrongness of the activity.

Fortunately for us Americans, unlike the Medes and the Persians, our laws are not inviolate. They can be and are often changed for a variety of reasons. This ability to change our laws represents one of our greatest strengths as a republican democracy: the ability to adapt and change our governance to keep it consistent with the circumstances at hand.

When the current body of telecommunications and foreign surveillance laws were originally crafted, their writers did not anticipate the circumstances that currently challenge those laws. Those writers did not anticipate a situation where our intelligence agencies are a fraction of the size and budget that existed at the time the laws were crafted. Those writers did not anticipate a situation where an enemy was present on American soil in numbers sufficient to be a military threat.

Those writers and very few Americans anticipated a situation where 19 foreign militants would take advantage of the protection of those laws to strike and kill nearly three thousand of our fellow citizens. Since 9-11, attempts have been made to rectify the significant shortcomings those laws proved to have in fighting an enemy that is not a state and already among us, but those attempts themselves have failed to appreciate the sheer scope of the threat.

The result of this shortcoming has been that the current administration chose to more widely execute an already existing executive power. From the moment that decision was made, the administration, the legislators in oversight, and the professionals of the executive agencies knew this was an inoptimal decision that would have to eventually be resolved legislatively rather than executively. Before the existence of this temporary solution was made into a headline, the administration and the Congress were already working to resolving the problem.

Now, this resolution is stalled, not because it is unneeded, but because some want an admission that the original laws were broken. Some want the inviolate nature of the original laws to be confirmed before they can be amended to more adequately deal with the circumstances that actually exist now and were not anticipated when they were crafted.

Hypocritically, some of those who want this admission were involved in the crafting of the original laws, were aware of the temporary solution, were involved in the derailed solution, and were part of drafting the current compromise. What purpose does this appeal then serve? Not to make the law better, no to solve the problem, not to give the professionals the tools they need, but to score political points against an opponent that something was done wrong.

Even this desire to score political points would be forgivable if some kind of alternative was being offered, but instead the demand is that the inadequate laws be left in place and wrongdoing be admitted. Meanwhile, America’s enemies continue to exploit flaws in its own laws against it. How many political points are scored with dead citizens?

I know that there will be many, many people who disagree with my view. Some have gone so far as to declare the government the enemy because it violated the law, ignoring the damage the enemy has done exploiting the same. Nevertheless, the one option we do not have is to do nothing, because that option has already been proven not to have worked.

There are compromises that can be reached that would likely make everyone happy. Some options might even leave these much vaunted laws untouched. Of course, any of these alternatives cost the kind of money that very few seem to be willing to spend and require a political will of their own.

What remains is that inadequate laws governing telecommunications and foreign intelligence need to be amended to deal with the circumstances at hand. Will we manage to accomplish that task, or will our belief in the inviolate law simply make us victims of our own rigidity?

Deterrence the Third

In previous posts, Scott brings up the interesting concept of deterring terrorism in part by engaging in a form of soft deterrence that turns the terrorist networks’ own communications tools against them. As characterized, I find that I disagree with the premise that fundamentalist Muslim jihadis can be deterred in this fashion for any meaningful length of time; however, I also believe that the idea of soft deterrence deserves further exploration as a concept.

The concept of soft deterrence against operational jihadis is flawed because it is so easily subverted by the jihadis themselves through the very kinds of countermeasures businesses and websites use every day to prevent the same kind of disinformation on their own networks. As part of a far larger countermeasure against jihadis, soft deterrence is a useful tool, but it will never be a tool that can be used alone.

This tool, however, can be an incredibly useful one if applied to a different part of the equation. As I have mentioned several times on this weblog, one of the goals that must be achieved in order to defeat fundamentalist Muslim jihadism is to deny the enemy a pool of recruits to recruit from. As David has pointed out previously on this weblog, there is a difference between a fundamentalist and a jihadi, and I believe that soft deterrence focused at that difference can work powerfully toward destabilizing the recruit pool using the very same methods being focused on active jihadis.

Despite the current more effective use of the media by the jihadis, the United States actually enjoys a significant advantage in the potential use of media targeted at fundamentalists who have not yet become jihadis. The existing problem is that advantage has not yet been employed. A focused effort on the part of the United States to target potential jihadis with an avalanche of counter information could help fatally destabilize the recruit pool, thereby denying active jihadis the ability to replace those lost to other, more active means.

Essentially, this means a widespread and focused advertising campaign focused at fundamentalist Muslims, particularly in Afghanistan, Pakistan, Saudi Arabia, and places where people of those nations congregate designed to convince them that jihad does not further their goals of spreading Islam. If the United States cannot accomplish such a task, then what nation can?

In this way, I believe the tool of soft deterrence can be effective against jihadis, not by deterring the jihadis themselves, but by preventing them from being able to find more.

Deterrence?

I posted this in the depths of the comments behind my last post and it passed without comment, by which I take it no one saw it, so I shall post it again out here. I find the idea vaguely intriguing and certainly would like to hear others' thoughts on the new tool in the box... so to speak.

Deterrence? For terrorist networks? Sure, why not?

Politics of everything but the point

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.

Living freely and happily in the land of “the Government should”

I have heard the collective gasp that I, an otherwise avowed libertarian, would grant the government the power to eavesdrop on my communications in order to prevent harm to myself, my fellow citizens, or my nation. “How can you possibly believe the government should have such power,” people ask. Bluntly, I think the government should have that power because the government works for me and because I believe in the system of checks and balances our system allows for.

Again, I point out that I am an active, engaged, participating citizen in a nation governed of, by, and for the people. Part of that engagement is that I understand, as a citizen, what tools I have available and what tools I am then willing to let the government use. I also understand that, if the government decides to take tools I do not allow for or fails to give tools back once it is done with them, I have options that I can exercise.

Perhaps, the problem that so many people have with this reasoning is that they want to give the government a carefully crafted blank check then be able to forget once that check has been issued. I, on the other hand, do not believe for a moment that the government should be able to do anything without the constant, hawkish watching of its citizens. This watching is the citizen’s role in republican “democracy” and is the price of liberty.

What strikes me as so odd about the current reaction to warrantless wiretapping and its associated issues is that people ignore their history and their practical application. People have this image of a monstrous, overpowering government watching over each and every one of us with Gestapo-like powers. If such a government comes into existence, then it is our fault for not stopping it.

Now some people, at this point will shout, “But that’s exactly what warrantless wiretapping is allowing to happen!” I argue, however, that is not what is happening at all. Instead, warrantless wiretapping represents the inevitable results of other choices, made a while ago, that limit our ability to effectively protect ourselves as a nation. Does warrantless wiretapping mean greater vigilance? Certainly. Does it mean the police state has come into its own? Absurd…

For those people who just cannot accept that warrantless wiretapping should be allowed, there are solutions. The broader power exercised by at least the past two administrations and the current one would not be necessary if we had not allowed our intelligence agencies to be decimated and hamstring since 1989. If our intelligence agencies had enough funding, manpower, and resources, they could pursue our enemies “over there” instead of having to do so from here. If our military had not been allowed to shrink to such a small size, we could keep our enemies over there instead of being worried about them coming here. If we had not allowed our diplomatic service to atrophy to the point where it cannot tell the difference between over there and here, we would not have this problem.

Warrantless wiretapping is the result of our own national laziness toward our own wellbeing. We want our government to protect us, to defend us, and to do the things we are unwilling or unable to do ourselves, but we are not willing to be vigilant enough to ensure that it can do the job. Is warrantless wiretapping the best answer? Hardly. If not, then how would you do it differently?

-=DLH=-

Of toolboxes and rebuttals

The Preamble to the Constitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

http://www.usconstitution.net/const.html#Preamble

The Presidential Oath of Office

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

http://memory.loc.gov/ammem/pihtml/pioaths.html

Article II Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

http://www.usconstitution.net/const.html#Article2

The 10^th Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

http://www.usconstitution.net/const.html#Am10

 

I appreciate my fellow writer David Bringhurst’s response to my endorsement of John McCain for President. I knew from the moment I first conceived of the idea of the post I eventually wrote that I was exposing myself to such criticism, both because I am supporting a political moderate and because I am supporting him for a single, defined reason.

However, I found Bringhurst’s response predictable and presumptive. The refutations that he presented appeal to an academic understanding of the Constitution, the war against fundamentalist Islam—I used “War on Terror” simply as a recognizable term—and the role of the President and the federal government in our lives. In short, I think he fails to understand the nature of the toolbox he alludes to and why it contains a hammer to begin with.

I have never questioned whether or not the people of the United States of America have the ability to address one or many issues, especially domestic ones. What I question, in fact what I reject, is that the President or the federal government has any real role in ultimately solving those issues. I do not elect a president to stimulate the economy, force me to accept government health care, or create moral dictates for me to abide by. I elect a president to abide by the role he occupies as clearly defined by the Constitution and nothing more. I fervently believe that all other issues of national importance are issues for the people, not the federal government, to address and resolve as each person and as groups of cooperative people see fit. I believe that this view is the embodiment of the ideals of a government of, by, and for the people as conceived of by the Founding Fathers.

The idea that the President’s primary responsibility is to protect the Constitution from domestic threats clearly ignores the actual mandate of the Presidency as presented in the Constitution. It is no accident that Article II, Section 2, which lays out the responsibilities of the President, lists his role as commander-in-chief before all other concerns. In fact, if one is referring to oaths, then it is the oaths of everyone who works for the President, most especially the military, that contain the actual exhortation to defend the Constitution against all enemies foreign and domestic, and it is those agencies of the executive that are charged with the task of preservation and defense, even against the President if need be.

Indeed, in the history of the executive branch of our federal government, the enduring agencies of the executive have always been State and Defense—until 1949 rightly entitled War—and those two agencies are explicitly outward looking in their very natures. Accepting this history as precedent, the role of the President as the chief executive agent, in my estimation, is to act as the international face of a nation that otherwise chooses to deal with its own affairs by actions other than the government.

Now to the more important issue, which is single issue that I believe has already defined the current Presidency, will undoubtedly define the next, and will likely trouble many administrations following that one: fundamentalist Islam is a threat not just to the United States, but to the rest of the non-fundamentalist world. This is not a slander against Islam itself but against a particular flavor of Islam that believes that it is a Muslim’s duty to subjugate the entire world under that interpretation by whatever means are necessary, including litigation, intimidation, and violence. I agree that this threat was brought into full focus on 9-11, but I was speaking against this threat after Khobar Towers, the first Trade Center attack, the African Embassy bombings, and the USS Cole. I continue to speak out against this threat, and will continue to do so until it no longer threatens.

Further, I understand something else about the war against fundamentalist Islam that so many people, including Bringhurst apparently, miss: it is a war, declared by our enemies and fought on behalf of the United States by an all-volunteer fighting force made up of professional, educated, dedicated, and willing warriors who understand better than anyone of any political ideology what our nation is and why it is necessary to fight. It should be telling to everyone that our military, made up of less than 1 percent of the population—just 2.4 million brave men and women—continue with courage, valor, and commitment to fight in places most people cannot find on a map or pronounce, not because they have to, but because they chose to and continue to choose to.

Which brings me to John McCain, the single issue of electing a wartime President, and the American toolbox that Bringhurst cites at the beginning of his rebuttal. Certainly, America has a vast and capable toolbox at its disposal. I choose to give the President I will vote for the hammer and ask him only to pound those nails well and with all of his might. The rest of those tools should reserve for the people for projects of our own choosing.

-=DLH=-

Postscript: For the sake of an accurate record, I have been in the military for 14 years and served from December 2002 to May 2003 as part of the 332^nd Expeditionary Communications Squadron, then stationed at Ahmed al Jaber Airbase, Kuwait.