Justus For All

Here is a Wall Street Journal op-ed arguing for the inerent power of the Presidency to conduct surveilance.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation’s declared enemies, even when they elect to communicate with people within our country.

Meanwhile, this Washington Post op-ed theorizes as to the nature of this particular program and advocates that it explicity be made, with safeguards.

The heart of the program may be this effort to find links and patterns. William Arkin explained in a Dec. 23 posting in his washingtonpost.com column, Early Warning, how the data-mining process might work: “Massive amounts of collected data — actual intercepts of phone calls, e-mails, etc. — together with ‘transaction’ data — travel or credit card records or telephone or Internet service provider logs — are mixed through a mind-boggling array of government and private sector software programs to look for potential matches.”

This is the kind of innovative technology the government should be using, with appropriate safeguards. It employs computer algorithms to discern patterns that would probably be invisible to human analysts. It searches electronically amid the haystack of information for the one dangerous needle. In the phrase that was often used in the scathing Sept. 11 post-mortems, it seeks to “connect the dots.”

The legal problems, as Arkin suggests, involve the dots — what digital information can the government legitimately collect and save for later analysis, and under what legal safeguards? As it trolls the ocean of data, how can the government satisfy legal requirements for warrants that specify at the outset what may only be clear at the end of the search — namely, specific links to terrorist groups? These and other questions will vex lawyers and politicians in the coming debate, but they aren’t a reason for jettisoning these techniques.

Lastly, this Seatle Post Intelligencer article presents some evidence that the FISA courts may not be as accommodating as has been alleged (via Larry Bernard:

To win a court-approved wiretap, the government must show “probable cause” that the target of the surveillance is a member of a foreign terrorist organization or foreign power and is engaged in activities that “may” involve a violation of criminal law.

Faced with that standard, Bamford said, the Bush administration had difficulty obtaining FISA court-approved wiretaps on dozens of people within the United States who were communicating with targeted al-Qaida suspects inside the United States.

The 11-judge court that authorizes FISA wiretaps has approved at least 18,740 applications for electronic surveillance or physical searches from five presidential administrations since 1979.

The judges modified only two search warrant orders out of the 13,102 applications that were approved over the first 22 years of the court’s operation. In 20 of the first 21 annual reports on the court’s activities up to 1999, the Justice Department told Congress that “no orders were entered (by the FISA court) which modified or denied the requested authority” submitted by the government.

But since 2001, the judges have modified 179 of the 5,645 requests for court-ordered surveillance by the Bush administration. A total of 173 of those court-ordered “substantive modifications” took place in 2003 and 2004 — the most recent years for which public records are available.

I am still not totally sure about this entire situation, but here is what I am leaning toward thinking.

First off, legal or illegal, the program in general seems like a very good idea. If it is illegal than it should be made legal. Gathering intelligence is a different process than gathering evidence. Intelligence gathering, by it’s very nature, means that you have to look at lots of different information, most of it innocent of wrong doing, to find patterns. Imagine, for example, needing ‘probable cause’ to obtain a warrant to take satellite photographs of suspected Soviet missile silos during the cold war. If we had probable cause, we probably wouldn’t need the photographs.

As to whether it is legal or not, that is a close call. The President clearly does have some inherent authority, lessened by the authority of Congress in this matter, which is less than that of the President but not entirely absent. It seems to me that FISA does not clearly address the sort of intelligence that is collected here, so this program is not a direct violator of FISA, but neither does it benefit from the increased Congressional authority that FISA searches have. FISA as currently structured is inapplicable to this program. I have to lean slightly on the side of the Bush administration being within its right to conduct this sort of program.

Based upon the evidence we have, the Bush administration at least made a good faith effort to follow the law in this area. While the courts may conceivably decide in the future that this activity is not sanctioned by law and outside of the Presidents inherent powers, that offense would not, in my opinion, rise to the level of any prosecution or impeachment. At the most, the program would be ended.

I am divided on whether a new law should be based authorizing this sort of activity. First off, I am doubtful that safeguards to civil liberties gained from Congressional statute and authority on a program like this would in practice be greater than the safeguards we have by the President acting only with his limited authority. It is easily to imagine that if a law is passed authorizing this behavior (which I am convinced would have to Forth Amendment issues) would actually expand the scope of this program. One can certainly imagine under this circumstance that fully domestic communications could be included, and even, quite possibly, the data collection being expanded from terrorism related issues to purely criminal concerns. Drugs and child pornography being prime examples of things I can easily imagine being authorized as targets of such a program. I would imagine that the techniques being used to identify terrorists would work even better against those targets.

Leaving this program standing on purely Presidential authority seems to me to be a better safeguard of civil liberties than enhancing it’s authority and legal status by congressional approval.

It is also possible to imagine that the process of getting a law to support this program would damage the effectiveness. I doubt that there has been much damage to it so far by the various news stories. The detail vague enough that it seems unlikely terrorists could change their behavior in response to this revelation. That might not be true after the revelations needed to get congressional support for the program.

Additionally, we must look at the harm, if any, this program causes to the innocent. It seems to me that at worst, someone who is identified by this program as a possible terrorist will be subject to further monitoring (targeted and with warrants.) While this is intrusive, it is already accepted in general that some, perhaps most, of those who are monitored will turn out to be innocent. Of course the vast majority of people monitored by this program will be innocent, but the vast majority of them will also never be listened to by a human and simply be analyzed technologically. This seems to be a very small intrusion to me.

For the most part, the harm in a ‘police state,’ comes not from the ability of such a state to identify illegal activity (considerable though that is), but from the activities that are considered illegal. Perhaps a better way to address concerns that the war on terror is eroding civil liberties would be to positively protect the legality of our various rights.