Dr. Strangelove, or How I Learned to Stop Worrying and Love the Bomb, was a 1960s liberal lampoon of the Cold War that was both funny enough and incisive enough to gain permanent, bipartisan recognition as a great comedy. Stanley Kubrick jazzed up the plot from a post-Cuban-Missile-Crisis scare novel by George and Bryant entitled Red Alert, and made a surreal comedic classic. Concerns about nuclear weapons are sensible, so I don’t mind my pragmatic tolerance of them being tied to George C. Scott’s insanity or Slim Pickens’ glee at riding the bomb to its destination; there’s a level of insanity tied to the very idea of nuclear war.
I feel the same way about wiretapping. As my long-lost but recently reacquired comment nemesis “darkhorse” observed, we’re dealing here with a national self-perception — we’re the land of the free, how can we tolerate “Big Brother” listening to our phone calls?
My last, lengthy post regarding legal immunity from lawsuits for the telecommunications companies in the latest update to FISA (the Foreign Intelligence Surveillance Act) led me to revisit the entire subject of wiretapping people living inside the US for national security purposes. I’ve spent the last few days reviewing the history of the surveillance program, and trying to grasp how it came about, what it was, and how it affects civil liberties. Despite the fact that I recognize the importance of civil libertarian concerns, my research has left me astounded at the mindless ill will of some of the President’s critics. It’s not just that I think he’s on solid legal ground for the program as it stood in 2005, though I do think that. It’s that the President’s actions in this matter have been so careful, so cognizant of existing law and Constitutional guidelines, and so restrained, that the charges that he’s “shredded the Constitution” and that the liberties of the nation “are in grave danger” constitute grossly irresponsible conspiracy theorizing, with the nation’s security the victim. I know that sensible legal minds disagree over whether the President’s surveillance program stayed within legal guidelines or stepped over them; but even those who think he’s stepped over the line have to acknowledge that he’s made a serious attempt, not only to protect the nation from real dangers, but to respect the legal boundaries of his office. To say otherwise is irresponsible and unacceptable. This is not an Executive power grab in any reasonable sense.
To understand what happened, we need to step back in history to the Clinton administration, and even further back than that to the early operation of FISA. I don’t believe it’s very well understood that the deliberate disconnect between foreign intelligence and domestic law enforcement, the infamous “Wall” blamed (a bit inaccurately) on the Clinton administration, was actually an interpretation of FISA, and is a huge part of this wiretapping discussion.
FISA was passed in the wake of the Church Hearings in the Senate, a set of hearings reviewing the use of surveillance tactics against domestic political enemies during the Vietnam war and the Nixon administration. It attempted to bring clarity and some oversight to the question of what sort of surveillance the Executive was, and was not, legally permitted to do in the pursuit of national defense. Though the law itself seems fairly clear, case law surrounding FISA soon imposed restrictions that were not really present in the law — namely, that foreign intelligence data could not be collected for the purpose of domestic criminal prosecutions. This “primary purpose test,” which courts constructed before the Clintons took office, was famously codified by the Clinton administration’s Deputy Attorney General, Jamie Gorelick, as an official policy of keeping foreign surveillance separate from domestic law enforcement in order to protect citizens from potential oppression by the Executive. Andrew McCarthy explains this pretty clearly in this review published in the National Review online in 2004.
The effect of the Wall is widely understood by now, and correctly. We were at war but did not know it, and the nature of warfare had changed. The Wall, created with intent to protect citizens, prevented domestic law enforcement agents from recognizing and foiling a plot to attack the World Trade Center using hijacked aircraft. This highly revealing confession by Stewart Baker, former legal counsel to the NSA, opines that it’s probable that their efforts to protect citizens from theoretical civil liberties violations prevented US agents from stopping the 9/11 attacks.
We couldn’t find al-Mihdhar and al-Hazmi in August 2001 because we had imposed too many rules designed to protect against privacy abuses that were mainly theoretical. We missed our best chance to save the lives of 3,000 Americans because we spent more effort and imagination guarding against these theoretical privacy abuses than against terrorism.
Let’s pause here to recall that the political Left, which today is touting its civil libertarian bona fides, at the time blamed the President for his failure to prevent 9/11. In particular, after the revelation of a military data mining operation called Able Danger that had identified some of the 9/11 hijackers as possible targets for investigation, these leftists argued that the specific information produced by foreign intelligence data mining should have been used by the President, and that his failure to do so constituted near-criminal negligence (see this site for an example of how they viewed it). In the light of recent cries of dismay regarding the beleaguered Fourth Amendment, the absence of Leftist libertarian concerns about Able Danger is revealing. Of course, Able Danger, by virtue of the inherent limitations of data mining, was incapable of producing anything other than a name to keep an eye on; however, it did involve the sifting of a massive amount of domestic internet access records that are not different in any meaningful way from the private data the Left has been asserting are inviolable since the passage of the Patriot Act. As is so often the case, the Left’s application of civil liberties principles is selective, and subservient to the much more important goal of embarrassing the President when the President is Republican.
In re Sealed Case
The Patriot Act made an attempt to correct the problem of separate domestic and foreign intelligence by creating a means by which agencies could trade information. However, when the Attorney General’s office wrote guidelines to implement the Justice Department’s interpretation of the Patriot Act, they ran into a wall. In November of 2001, the FISA Court had adopted Gorelick’s 1995 guidelines as its official standard of review to apply in all cases before the court. When Justice submitted their procedures to the FISA Court in March of 2002, the FISA Court accepted them with modifications, and the modifications specifically re-erected the wall between foreign intelligence and domestic crime investigation. Contrary to the inaccurate sound bites of leftist activists, obtaining a warrant under FISA during this period was burdened by Clinton-era restrictions that the Patriot Act had attempted to eliminate, and as a result, the FISA court required more than 170 warrant requests to be modified in a manner that enforced Gorelick’s wall, a level of scrutiny that had not been applied before the Bush administration. This obstruction may have been due to the activism of a single, Bush-hating judge, a Clinton appointee famous for judicial activism.
The Bush administration appealed the FISA Court’s ruling through a mechanism that had, until then, never been used — a secret FISA Review Court. That court met in September of 2002, and issued its decision in November of the same year. If you have not read this decision, called in re Sealed Case, you are not equipped to understand the legal issues surrounding domestic wiretapping. You can read the decision here, or you can read Byron York’s simpler explanation of the case in National Review Online.
The decision basically acknowledged that as long as the government has a legitimate foreign intelligence reason to be investigating a US person as an agent of a foreign power, there’s no real restriction on gathering evidence of criminal conduct; the one justifies the other. In effect, this makes surveillance of suspected foreign agents within the borders of the United States completely legal under FISA. The court noted that the Fourth Amendment “probable cause” limits applied under domestic law enforcement warrant cases do not apply to foreign intelligence cases, so long as there’s reason to believe the target is working on behalf of a foreign power, like al Qaeda. Also, the FISA Court acknowledged the inherent Constitutional power of the Executive to engage in surveillance of foreign agents without a warrant.
Legal Alternative to Protect the Nation
In the wake of in re Sealed Case, however, it became increasingly obvious that the FISA process was too cumbersome to react with the speed necessary to provide intelligence data in some cases. The 9/11 Commission noted the case of Coleen Rowley, the FBI agent who tried to get a FISA warrant on Zacharias Moussaoui, the 20th hijacker. Ms. Rowley produced a 13-page memo detailing the difficulty, and the 9/11 Commission noted that the problems noted had not been solved. Byron York reported the 9/11 Commission’s acknowledgment of the problem:
“Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow,” the commission said. “Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process.”
It was in the wake of these revelations, and the growing accusations against the government for its failure to protect the American people on 9/11, that the President ordered the existing program of the NSA setting up mechanisms to respond immediately to requests for access to domestic communications with foreign powers.
The Attorney General issued a legal brief in January of 2006, explaining the legal basis for his actions in the wake of unauthorized publication of classified details of the NSA program by the New York Times. There’s some valid disagreement among legal scholars whether his argument is correct or not; however, I don’t think there’s any valid claim that the President was not acting in good faith, in accordance with what he believed to be powers to which the Constitutional entitled him. The arguments he raises are at least plausible. The Authorization to Use Military Force, passed a week after the WTC attacks, constitutes a clear declaration of war, as Hamdan v Rumsfeld confirmed. There’s a bunch of case law about surveillance that sidesteps the question of Executive privilege to surveil foreign powers acting within our borders, taking for granted that such power exists and is not within the court’s jurisdiction to impede. In re Sealed Case confirmed it; so did Truong and Keith, two decisions frequently cited in constitutional analyses of wiretapping cases. Surveillance of military enemies has consistently been a part of the conduct of war throughout military history. Protecting the US against attacks by foreign powers is clearly, constitutionally the President’s job.
There are excellent analyses of the President’s legal case to be found on the internet. Perhaps the best, and most balanced, I’ve read was the analysis presented before the Senate Judiciary Committee in March of 2006 by David Kris, formerly of the Dept of Justice and currently legal counsel to Time-Warner. I also like Baseball Crank’s legal analysis, although he’s more obviously partisan. My own sense is that this is a no-brainer; so long as the origin of the call is plausibly a hostile foreign operative, tapping the call meets the Fourth Amendment “reasonableness” standard, falls within the President’s legitimate war powers, and does not require a warrant. I personally like the “border crossing” argument raised in Kris’ brief, but not being used by the government. Kris observes that based on the “reasonableness” standard, it’s legal without a warrant to search the property of any individual crossing into the US from a foreign nation, simply by virtue of the fact that he’s crossing the border. Why shouldn’t the same standard apply to phone calls and emails?
Regardless of where you fall on the legal issues, however, to refer to a disagreement over the legitimate extent of Presidential war powers as “breaking the law” is clearly an exercise in ill will and tendentious language. President Clinton raised nearly a dozen, obviously spurious Constitutional challenges to Ken Starr’s subpoenas, and nobody with the slightest intellectual integrity thought they had any merit; yet, nobody thought of accusing the President of “breaking the law” by stalling the subpoenas in this manner; he has a right to raise legal challenges. President Bush has a defensible legal argument for his surveillance program; argue the legal details as much as you like, but his defense is far more defensible than Clinton’s stalling, and far more deserving of our recognition of his intent to operate within the law. Even if some court settles the issue and decides the government’s case is not legitimate, they’re not “breaking the law” in any meaningful sense.
And for the record, the decision of the Eastern Michigan district court in ACLU v NSA back in 2006 does not constitute settling the issue. I’ve never seen such widespread derision for a court decision; even those who firmly believe the President’s program was illegal, recognize that Judge Taylor’s decision in this particular case was devoid of legal reasoning, and an embarrassment to the legal profession. The government obviated the need for further litigation by giving in and advocating changes to FISA beginning in January of 2007, the result of which was the recent update to the law; but the matter remains unsettled by legitimate court ruling.
At the heart of the Left’s agita over “illegal” wiretapping is the testimony of Mark Klein, an AT&T employee, identifying a locked room run by NSA into which run switches from various parts of the world. The claim by Senator Dodd, based on Klein’s testimony, was that the NSA had access to every call and every email made by every person in the US. That’s probably exaggerated — there’s no way you could prove that based on Klein’s testimony alone — but it serves to illustrate why there’s so much contention about this issue.
The problem is that immediate access to an identified foreign call really does require this sort of broad-based access on the part of the government. Wiretapping is not what it used to be; it used to be a physical tap into a hard wire that was solid and stationary, and usually a different wire for every target. Today, calls are digitized and routed as packets through any number of possible avenues. Some calls go across the internet as VOIP (“voice over Internet Protocol”) calls. Others go through cell towers; terrorists seem particularly fond of prepaid cellular phones that can be obtained without ID, used once or twice, then thrown in the dumpster. If the NSA is going to be able to respond to a tip quickly and catch a call in-flight, it has to have precisely the sort of access that Klein’s report says was constructed at his site in San Francisco.
Is this really a threat to civil liberties? Potentially, yes, but actively, no. Phone traffic amounts to billions of individual messages per day. Nobody has the capacity to digest and understand that volume of data; it has to get scanned and stored by machines. Circuit judge Richard Posner made this case in a well-known Washington Post article back in 2005. Personally, I don’t feel threatened by a machine scanning my phone calls for keywords.
The real threat occurs when the definition of the keywords gets colored by questionable political motives. If the wrong people decide it’s a threat to national security to permit religious meetings in homes, for example, then suddenly a number of my phone calls will get flagged by machines, and people will start reading the transcripts. It becomes a problem if ordinary activities get outlawed. So long as the process for making law does not get co-opted by bigoted partisans who want to stamp out what I stand for, I feel safe enough with machines scanning my calls. Taking that to the case at hand, so long as the calls they’re looking for are limited to those plausibly connected to foreign powers, there’s a legitimate reason for surveillance, and a legitimate reason for a machine to scan all the traffic.
This is where a surprisingly banal complaint I read on Daily Kos becomes relevant. I actually couldn’t believe I was reading this at first, but the more I thought about it, the more I realized that this might explain roughly 80% of the Left’s animation about surveillance. A Kos commenter called jello5929 posted this under the title, “FISA and Phone Sex: Your freak is free game:”
It’s easy to think that changes to FISA won’t really impact average Americans. But in the global economy, you are doing a lot more international communication than you realize.
And now all that international communication can be wiretapped or intercepted without a warrant.
Including your phone sex calls.
I honestly couldn’t care less about jello’s perversions; seriously, I don’t want to know. However, I can understand why guys like him might be extra edgy about the government having the ability to listen to their calls. Who knows what he’s doing, and with whom? I hope he gets help, but there aren’t words to describe how little I care if his “privacy” gets ruffled a little. I do acknowledge, though, that there are more serious concerns in the fire.
Thomas Jefferson noted that national security actually trumps privacy as an essential right. The famous line (which Jefferson never actually said) is that the Constitution is not a suicide pact. The Wikipedia article that appears under that line contains this remarkably sensible observation from Mr. Jefferson, reported by Brest, et al, the authors of the 2006 book Processes of Constitutional Decisionmaking: Cases and Materials:
Thomas Jefferson’s ambassadors to France arranged the purchase of the Louisiana territory in conflict with Jefferson’s personal belief that the Constitution did not bestow upon the federal government the right to acquire or possess foreign territory. Due to political considerations, however, Jefferson disregarded his constitutional doubts, signed the proposed treaty, and sent it to the Senate for ratification. In justifying his actions, he later wrote: “[a] strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.”
So long as the government is focusing on stopping al Qaeda from destroying domestic targets, and not focusing instead on suppressing their domestic political enemies, I’m content with modern technology monitoring my calls. The means to ensure that this remains the case is worth debating; but I haven’t seen any reasonable indication that we’re there yet. In the meantime, Jefferson’s assessment that the safety of the nation supersedes the need for scrupulous adherence to the law buttresses the already strong case that the Bush administration, acting in good faith, is working on the side of the angels while diligently defending the country against clandestine attacks.