Balkinization  

Friday, August 11, 2006

Stopping Terror Legally

JB

The foiled London airport bombing plot yesterday reminded us that surveillance and intelligence will be necessary to prevent future attacks on Americans. The choice is not whether we should or should not engage in such surveillance and intelligence. The choice is whether we will do so legally.

I don't know whether NSA domestic surveillance programs were important in providing needed intelligence to stop the bomber's plot. I will assume that they were. What lesson should we draw from that fact? The right lesson is that these programs are important and that some version of them will be part of our country's governance for the foreseeable future. The wrong lesson is that because they helped us they should continue to operate outside the law.

As we move toward a national surveillance state, government officials will convert what began as emergency strategies into long term forms of governance. Domestic surveillance in some form is here to stay. It is not a temporary or emergency measure. Because it is here to stay, it must be placed firmly and squarely under the rule of law. If we do not do so: if we say to ourselves-- "how wise our leaders were to break the law so that we could be safe"-- we will create a Frankenstein monster. Again, I repeat: The issue is not whether our government should engage in information collection and analysis to safeguard us against asymmetric warfare and terrorist plots. It should. It must. The issue is whether we will let the executive do so without legal accountability, without the checks and balances necessary to ensure that people who believe they are acting in the country's best interests do not abuse their authority because they are so certain that they alone know how to keep us safe , and refuse to listen to anyone else-- or even feel that they must be accountable to anyone else. It is not foolhardly to assume that if terrorist groups attacked us once they will attack us again. That, sadly, is the sort of world we live in today. But it is also not foolhardy to assume that if we let government officials act outside the law they will overreach, make mistakes, and abuse their power. That also, sadly, is the sort of world we live in.


Comments:

But if it had been here and the NSA program was used to disrupt the plot, could they prosecute the group members using the evidence they obtained illegally?
 

"I don't know whether NSA domestic surveillance programs were important in providing needed intelligence to stop the bomber's plot. I will assume that they were. ... The wrong lesson is that because they helped us they should continue to operate outside the law."

That's a surprising combination. Are you saying, then, that the US should not have conducted that surveillance, even if it played a major role in thwarting the attack?

I've not yet seen any prominent critics of NSA surveillance come forward to say that. Can we count you as the first?
 

Let me modify that slightly: Are you saying that if there was simply no way to secure explicit congressional authorization of such surveillance, then the US should not have conducted that surveillance, even if it played a major role in thwarting the attack?
 

The Administration has admitted that the US did almost nothing to contribute to this round up of suspects. Hence NSA did nothing. Hence your question, which of course is a diversion form the issue of legality and civil rights under the Consitution, is moot. Furthermore, with any sort of reflection at all, you would know that under FISA the NSA would have been able to continue its nefarious ways with the endorsement of the law. So, once again, your question has nothing to do with anything. An illegal program that could be conducted legally but isn't just because the Administration likes to do things its own way doesn't get kudos because it might have disrupted a plot that it could have disrupted legally.
 

LG - I'd be interested in seeing your source on that. I very well could be wrong, but Time reports that the US was, in fact, intercepting the group's communications. (http://www.time.com/time/nation/article/0,8599,1225453,00.html)

Furthermore, one U.S. official has said that at least some members of the group had been making calls to the United States. (http://www.washingtonpost.com/wp-dyn/content/article/2006/08/10/AR2006081001654_pf.html)

Does this mean that the controversial NSA surveillance program was used? Not at all. But I do think that it's enough to suggest that Lefty Granny needs to update the prescription on her reading glasses!
 

Let me modify that slightly: Are you saying that if there was simply no way to secure explicit congressional authorization of such surveillance, then the US should not have conducted that surveillance, even if it played a major role in thwarting the attack?

Let me modify THAT slightly. Suppose the feds had been arresting everyone named Omar, and that by doing so they foiled the plot. Would I be against their doing that, even though it played a major role in thwarting the attack?

Hell yeah, I would!
 

Actually, there's a good historical precedent for these sorts of preemptive strikes: kill all the male children. Works every time. Well, every time except when the Egyptians shelter them....
 

No one is suggesting that any course of action that would have thwarted the attack should have been undertaken. (I wouldn't condone the elimination of everyone in London, nor would I condone the outright outlawing of the airline industry.)

But I think my narrow question is a salient one: Say FISA was violated in this case, and that "inherent power" was insufficient justification. Was that violation justified?
 

Adam, I think you should take another look at the statement you quoted and your hypothetical and realize that the eyechart is not a reading comprehension test. There is no embedded message in the big E.

There is already "explicit congressional authorization" of foreign surveillance, and, for that matter, "explicit congressional authorization" of domestic surveillance. There has also, always been Constitutionally authorized surveillance.

The point that I take from the post is pretty clear - this kind of surveillance can be done by the NSA legally - they need to do it legally. Foreign surveillance needs only an annual report, foreign surveillance that generates domestic targeting has a three day window for surveillance while warrant requests are processed.

Your example seems to run something like this. A man pulls up to a gas station with an empty gas can and, after staring at it a moment in puzzlement, takes a screwdriver out and proceeds to punch huge holes in the can. He then fills the can from the holes he punched. Wiping his forehead he says, incredulously, "Are you saying I shouldn't have punched holes, even knowing that's how I got the gas into the can?"

As I read the post, it is the response given by the guy who walks up and quietly removes the cap and says: Yep, you shouldn't have. Here's how you get the gas in the can without punching holes.

There are times when necessity demands alternatives - those are already well recognized in the law. FISA already recognizes a fairly generous approach to necessity, with the three day freebie.

I guess if you have instances you want to pose of situations where you think that there is no situation that would meet the legal conditions of necessity, and where there would also be no ability to surveil the foreign aspects of the calls without violating FISA (which doesn't require a warrant for those aspects) and where there would also be no ability to get a warrant, even with the 3 day freebie, of domestically targeted calls, that might be a situation worth discussing. I can't picture your hypothetical, though.
 

To take your gas can metaphor:

Say the man takes the gas can to the station and, going to fill it, he realizes that the hole has been smashed shut. He can't get the gas in through the hole. But he absolutely needs the gas. Would you advise him, "sorry, but you just can't put gas in that can", or would you advise him, "put another hole in that can, fill it up, and get the gas home carefully"?

Your entire comment presumes that the surveillance could have been done in accordance with FISA. Now, of course we don't know whether FISA has been violated. But let's say it has. If it's not feasible to comply with FISA, is violating FISA justified to thwart plans like the 8/16 plot?

I think it's quite an interesting question. But for some reason, people just keep avoiding the hypothetical.
 

I think it's quite an interesting question. But for some reason, people just keep avoiding the hypothetical.

I think that's because most of us don't think it is a good hypothetical. It reminds me of a plotline from "24": Jack can only find the bomb if he tortures the terrorist's innocent child. The handling of such issues on that show is puerile (that's not a criticism of you, but of the show).
A much better approach is the John Wayne/John Ford classic "The Searchers". Better yet would be the first five seasons of Buffy the Vampire Slayer.
 

I'm not avoiding the hypothetical, you just haven't actually posed it.

Your variation on my analogy is one of (maybe, kinda, sorta - although not well phrased) necessity/exigency. The main point is - the "gas can" if it stands as any kind of metaphor, stands because it represents something that is not "owned" by the man holding it - just as the Executive branch does not "own" the law, but rather is entrusted with its protection.

Before you destroy the can, because you THINK you are having trouble with the cap, you need to either a) get permission, or b) have a real and pressing, present need.

Which I think I covered. The law as it exist provides exigency exceptions for the warrant requirements and FISA drags "exigency" out to a full three days (whether credibly or not - it does).

When you say, Your entire comment presumes that the surveillance could have been done in accordance with FISA. that is correct. Because that is what the post highlights IMO and where you went on a "frolic and detour" by positing a "well, yeah, but what if the sun was actually the moon instead, then would you say the earth revolves around it?"

I'm all for addressing the "what if it was absolutely NECESSARY - but didn't fall within the exigencies exceptions that already exist and wasn't actually a "necessity" as defined by law, and actually was an exigency and necessity that couldn't be addressed within three days, and didn't involve the existing FISA powers to eavesdrop without warrants?


IOW, when you say: If it's not feasible to comply with FISA, -- you need to think up some way it wouldn't be "feasible" (in your, "absolutly necessary but not a necessity and not an exigency" approach) and present it in order to get a response.

If you can - it would, indeed, be an interesting hypothetical. As I said - I can't think of one. Neither could, as I recall, Alexander at the recent hearing - where he mentioned, as did Gonzales before with his "goshgolly, sometimes the applications are two inches thick" Rumsfeld imitation, that the problem was practicabilty - not possibility.




I think it's quite an interesting question. But for some reason, people just keep avoiding the hypothetical.
 

It is quite disengenous to spin the British plot story into anything relevant to the controversy over domestic NSA surveillance.

We have no reason whatsoever to think that the NSA program -- which by the administration's description involves only calls to/from the United States -- had anything at all to do with the British case. Even if there were calls to/from the U.S. by the British and Pakistani plotters -- a hypothetical not remotely in evidence -- there is no reason to believe those hypothetical calls could not be covered by FISA warrants. If the NSA was helping to surveil these foreigners abroad, that would be well within its traditional charter and not even covered by FISA.
 

I now see that there were, according to the Wash Post, FISA warrants issued in support of this investigation. So I will update my previous remark with that understanding.

However, that is not evidence that the warrantless program was used. In fact, it is evidence that the so-called Terrorist Surveillance Program was not necessary in this matter.
 

Funny, I was just thinking of this golden oldie (from 1994!) today.

Sad that barely a decade later, the design seems so naive.
 

There is a reflex tendency in our society to believe that complex cultural conflicts can be resolved through the use of technology, inside or outside legal boundaries. The problem is not only, or exclusively, an inclination to subvert the rule of law. It is the chronic stupidity of relying on technological "silver bullets" rather than HMINT - human intelligence. This includes learning to understand cultural assumptions one may not share.

It is one thing to gain access, whether within FISA or outside it, to verbal or written communication. It is quite another to understand what has been collected.

Terry Eagleton ends his recent *Holy Terror* with a quotation from Raymond Williams' *Culture and Society* that seems apt:

There are ideas, and ways of thinking, with the seeds of life in them, and there are others, perhaps deep in our minds, with the seeds of a general death. Our measure of success in recognizing these kinds, and in naming them, making possible their common recognition, may be literally the measure of our future."

David Fisher
 

http://glenngreenwald.blogspot.com/2006/08/legal-surveillance-not-illegal.html
" Legal surveillance, not illegal eavesdropping, stopped the U.K. terrorist attacks"
 

Greenwald's post strikes me as a bit superficial. He cites evidence that the US relied on FISA warrants in this investigation. I don't doubt that -- the Bush Administration has sought FISA warrants throughoutt the GWOT. Of course, the Bush Administration has not sought such warrants in *all* cases. How is Greenwald so confident that such warrants were sought for every episode of surveillance in this case?
 

I do think the immendiately unresolvable speculation about whether warrantless surveillance has been used in this case -- posed as hypotheticals without foundation -- rather misses the main point JB made in his original post. (He assumed that arguendo, in order to reach his main point.)

Rising above these controversies, JB argued that such facially illegal surveillance must be reconciled with the law in any event. That implicitly includes both a willingness to consider statutory adjustments as a matter of policy, as well as an imperative that the President obey the law.

I, for one, support both elements of JB's proposition.
 

Professor,

I must respectfully disagree with the basic assumptions of your post. Slavery was legal in our country for far too long, but it was always a crime and a shame. So too is the coming of the "national surveillance state."

Our rule of law is "innocent until proved guilty." Your post blithely accepts ever increasing failures to observe even this one simple aspect of what we claim to be defending. It falls to shapers of opinion and leaders of thought, such as yourself, to keep their eye on the ball and repudiate rather than rationalize such failures on the part of any administration. It may be acceptable that the layman is not able to see the way today's seemingly good idea can work evil in his name, or even be turned against him, but can it be acceptable for anyone in the legal profession, academic or practicing or students such as myself, to fail to vet both pros and cons of any specific piece of legislation or any general policy? From the elevation of a rhetorical war as campaign to end something injurious into the misbegotten AUMF, to the fallacy that we can by legislation "legalize" spying on innocent citizens without probably cause and without a warrant, there is no end of threats from within to be fought in order to preserve the liberties, the rights, the values that we see threatened from without.

At present the greatest threat to our values and way of life is widespread willingness to go along as the intelligence-military-industrial-complex legislates bad rhetoric into "legal" violations of the principles the President, among others, swore to defend.
 

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