Balkinization  

Wednesday, August 16, 2006

Stopping Terror Legally, Part II

JB

A followup to my earlier post on the lessons of the London airport bombing plot. Glenn Greenwald notes that British authorities used warrants (some administrative, some judicial) to obtain permission for the surveillance they used to foil the airline plot, and that on the American side, FISA warrants were used. Glenn correctly notes that, whether or not British law allows more flexibility than American law, it is still surveillance limited by law in the interest of preserving civil liberties and avoiding executive overreaching, in contrast to the NSA program, which is currently being conducted outside the law.

I also wanted to respond to a very interesting post by Tom Nadelhoffer over at Brian Leiter's blog. Nadelhoffer is dismayed about my acceptance of the coming National Surveillance State and wonders whether "more thought ought to be given to the antecedent question concerning the necessity and prudence of these programs [like the NSA domestic surveillance program] in the first place." "This is about whether the government should have the power to collect data concerning all of my emails, phone calls, web-browsing habits, financial transactions, etc." Nadelhoffer asks:

Is it truly worth sacrificing one's privacy if all one gets in return is a little security? Surely the citizens in Orwell's Oceania are safer than they were before INGSOC--but is the price for this security too high? I, for one, might prefer to run the risk that I could be the victim of a future terrorist attack to allowing my government--run as it is these days by the war-mongering and liberty-hating puppets of big business--to peer into every facet of my personal life all in the name of my supposed safety.

If the gain in security is small, and the risk to civil liberties is very great, then Nadelhoffer is surely right to object that the bargain is a bad one. It might be a bad bargain because it will be too difficult to constrain executive overreaching, or because, even if the executive acts perfectly within the law, the burden on civil liberties is simply too great.

In my previous post I argued that something like the National Surveillance State was coming, because digital information collection and analysis are increasingly necessary for effective defense and effective governance. But there are many versions of what such a National Surveillance State would look like, and it does not follow that all of the different versions are equally just or equally desirable. In some versions, the government would be given wide ranging authority to conduct domestic surveillance, engage in data analysis, and pursue preventative measures. In others, the government's powers would be strictly controlled, and its operations would be subject to various checks and balances that required justifications and accountability for decisions made. My former student Nimrod Kozlovski has argued that we might use the very same electronic tools we use for surveillance to record the steps that governments take when they engage in surveillance, so as to increase accountability and deter abuse.

We might make a limited analogy to the rise of the previous governmental regime, whose outward form is called the National Security State and whose inward form is called the Regulatory and Welfare State. Many people opposed the rise of the this state because they believed that giving federal agencies powers to create new rules and enforce them undermined the rule of law. Others objected that the welfare state (which included not only aid to the poor but also a host of tax breaks, subsidies and incentives for business and the middle class) would stifle initiative and destroy national character. Still others feared that the national security state would turn the United States into a bellicose power in which military officials and the military industrial complex controlled government in secret.

I leave it to the reader to assess the extent to which these fears came true. In some ways, they did, and in other ways, they did not. Rather, my point is that what happened in the seventy years since Franklin Roosevelt's election was not predetermined. It was a continuous struggle in politics over the contours of a new form of governance. And it was during this period that Americans gained-- through legislation and judicial construction-- many of the most important civil liberties protections they enjoy today. Indeed, they gained these protections, in part, *because* people understood that new forms of governance created new threats to liberty that had to be checked.

The same is true, I suspect, with the National Surveillance State. The shape of that state will depend greatly on who wins the political struggles of the next several decades over the proper balance between civil rights and security. I believe that technological prowess-- both offensive and defensive-- will drive governments to engage in more and more information collection and analysis, and they will inevitably be tempted to use the same devices they use to stop terror attacks to facilitate everyday problems of governance. Indeed, this has already happened.

So in this sense, the National Surveillance State is already upon us. It will be very difficult to get governments to dismantle these technologies and give up these tools completely. (After all, terrorists will not give up their technologies willingly). Rather than denounce the emerging National Surveillance State in all of its possible forms, it is, I think, far better to enter the fight over what kind of state we will have and demand that the use of information collection and analysis be done consistently with respect for human rights and human dignity. That is the challenge of our generation.


Comments:

Amongst all the other obvious issues, what's the point of sacrificing civil liberties and the Constitution if the prosecutors end up with a case that can't be prosecuted.
 

I, for one, am willing to engage in the policy debate on which JB focuses. I would add some observations of my own:

1) In the U.S. system, legislative policy debates over the tradeoff between civil liberties and security are appropriate, but ultimately irrelevant if the President succeeds in establishing the overriding principle that he can ignore whatever Congress enacts as the outcome of such debates.

2) Our legal privacy protections are established not only in the Constitution, but also by a framework of statutes. Hence, they are legitimately open to amendment in the face of changing circumstance.

3) The devil is in the details, and amending such statutes is best approached on the margins. Just because we might wish to move the careful placement of the line between civil liberties and security in the context of a particular law, such as FISA, that does not mean that the line should be removed entirely. So we should beware of overgeneralized strawman positions on both sides.
 

The current "administration" would surely object almost immediately to Kozlovski's proposal, since giving non-governmental actors (or more likely, those not approved by the "administration" for security clearances) access to the same technology would, they'd argue, undermine its effectiveness.

It would require that they sacrifice the uncertainty and secrecy on which Marty Lederman believes their programs depend.

While it's possible that a genuine political debate over control of these mechanisms could change the way they're used -- or indeed, whether they're even acknowledged to exist -- we'd have to go into such a debate with our eyes open. One side in this "debate" will claim you're a traitor for even mentioning such technologies, much less asking that watchdog agencies be given access to them.

Guess which party to this "debate" will find themselves answering charges of being the "al Qaeda candidates?"
 

Is the day coming when there will be a permanent implant of a Lojack type device in every man, woman and child in order to create transparency in mankind to rectify the Fall? What does an honest person have to hide? But then again I think of Kurt Vonnegut's hero in his "Player Piano". Perhaps there is some merit to NH license plate political philosophy after all. But why can't wise men and women come up with a reasonable middle ground between living free and dieing?
 

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