Balkinization  

Thursday, June 15, 2006

The Public Private "Handshake" and the National Surveillance State

JB

This Washington Post article describes an important but relatively little noticed feature of the emerging national surveillance state. When people think of government surveillance, they often think of the government spying on them or collecting information about them. But the government need not do this directly. Instead of directly spying on American citizens and/or collecting information about them, the government can simply purchase large databases from private companies, who in turn purchase it from a host of other private companies. There is in fact a huge industry in private data collection with companies whose primary customer is the government; as the Washington Post article details, many of these public/private contracts are classified. The information is then collated by private contractors and presented to the government, which combines it and collates it with other information already in its possession and analyzes it further. Personal information by itself can be innocuous but when combined with other information about a person (and about other persons judged to be similar) it can help create a relatively rich profile of a person's activities, preferences and tendencies.

This form of public-private cooperation (or in many cases public purchase of information from private sources) allows the government to do an end-run around the Fourth Amendment's prohibitions on invasion of privacy. The reason is that the state is not doing the data collection; it is only purchasing information already collected and collating the results with other information it possesses. As the article explains, this information can be used for far more than protecting national security; it can be used for ordinary law enforcement, or even to find teenagers who would be most willing to join the military. Once the information is available to the government for purchase and collation, and absent privacy laws prohibiting its use, there is no particular reason for government not to use data mining for as many different policy purposes as possible. If the government thinks it would be useful to know the preferences, tastes, habits and tendencies of its citizens for any reason of governance, it will eventually attempt to find out and make use of the information if it can do so at reasonable cost, unless the law prevents it. And the digital revolution, of course, makes it increasingly possible (and relatively inexpensive) to do so.

These relationships between private data collection companies and the government have become a central albeit unacknowledged tool of governance in the emerging National Surveillance State. As with all governance, this tool can be used for good or for ill, used wisely in the public interest or abused. The Constitution as currently understood places few limits on this form of governance; the major protections will have to be statutory and administrative and technological. The key goal of such protections will not necessarily be to prevent data collection and collation, but to limit its uses, and to trace and keep tabs on how the information is flowing, how it is being used, who is using it for what purpose.

Put another way, when collection and collation become major techniques of governance, we will need methods of accountability for these practices. And that means that contracts and practices that are currently classified and kept out of the public eye will have to be subjected to some form of scrutiny and accountability, either by the public or by some independent agency. Otherwise the National Surveillance State, like all well meaning forms of governance, will swallow up our liberties in the name of serving the public interest and getting the job done.


Tuesday, June 13, 2006

The Democrats' Family Values

JB

This New York Times article suggests that Senator Hillary Clinton has begun to strike the right tone on the abortion question.
"Let us unite around a common goal of reducing the amount of abortions," she said, "not by making them illegal as many are attempting to do or overturning Roe v. Wade and undermining the constitutional protections that decision provided, but by preventing unintended pregnancies in the first place through education, contraception, accessible health care and services, empowering women to make decisions."

Mrs. Clinton, a potential candidate for the presidency, also used her speech to take a jab at Republicans who, while adamantly opposed to abortion, have resisted efforts to pay for programs providing greater access to contraception and other family planning services.

Specifically, Mrs. Clinton criticized the Bush administration for failing to provide adequate money for family planning programs, as well as for refusing to approve over-the-counter sales of Plan B, an emergency contraceptive.


Despite what one might gather from media coverage, the pro-life movement is hardly monolithic. Some people opposed to abortion are also opposed to contraception, either because they believe that contraception by itself is prohibited by their religion or because they believe that easy access to contraception encourages premarital sex. But many people who oppose abortion on moral grounds do not oppose contraception.

Focusing on preventing unwanted pregnancies through family planning can help forge a new coalition of liberal and moderate voters who want sensible policies that will reduce unwanted pregnancies, and particularly unwanted teenage pregnancies. Doing this will help avoid not only the severe personal burdens that these women and their children will face but also the larger social problems that are exacerbated by the plight of impoverished single mothers.

But Democrats should do even more than focus on contraception. They should take the opportunity to connect family planning with a more general commitment to family values and sound family policies that assist women who choose not to have abortions, both during their pregnancies and after their children are born. That means pushing for government policies that can help prospective mothers with pre-natal care, with nutrition, with affordable child care once their children are born, and with affordable health insurance. Focusing on issues like these can help pro-choice Democrats make common cause with important elements of the pro-life movement whose voices are not always heard in the mass media. There are many many people in the pro-life movement who not only wish to prevent abortions, but who are sincerely interested in the welfare of mothers and their children, and support a variety of social programs to help them. Some of these pro-life people also agree with pro-choice Democrats on family planning and contraception, while others do not. Nevertheless, pro-choice Democrats should reach out to both of these parts of the pro-life movement.

Although the debate portrayed in the media seems to feature irrevocably polarized and entrenched positions, there are actually substantial areas of common ground in family policy if we move beyond the limited focus on whether to overturn Roe v. Wade and allow states to criminalize abortion procedures. Enlarging our focus, and thinking about family policy in all its various aspects, is the way forward in the future.


Monday, June 12, 2006

I Could Tell You Why What I'm Doing Is Legal But Then I'd Have To Shoot You

JB

Today the United States government took the position that its domestic surveillance program is beyond legal review and that even to hold the program to the basic rudiments of the rule of law-- that is, a hearing to determine whether the program violates the law-- would itself be illegal. From the New York Times:
[A]ddressing Judge Anna Diggs Taylor of the Federal District Court, [a government lawyer stated that] "the evidence we need to demonstrate to you that [the NSA program is] lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism.
. . . .

The government's main argument today, repeated numerous times, was that more facts are required in the case but that more facts cannot be disclosed. Judge Taylor asked few questions but at one point appeared frustrated by this approach.

"You have conceded, have you not, that a program has been authorized?" she asked Mr. Coppolino. He responded that the administration's public defense of the program has been too general to serve as the basis for judicial adjudication. "There is very much a difference," Mr. Coppolino said, "between the existence of an activity and the details of that activity."

Even portions of the government's brief that were said to demonstrate why further information about the program cannot be disclosed have not been filed in court. Instead, the government "lodged" the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to make arrangements to see them. At today's hearing, she shook her head no when Mr. Coppolino asked her whether she had "had a chance to review our classified submission."


If the issue were not so grave, the government's arguments would simply be farcical. If the federal judiciary accepts the government's argument to dismiss the case without requiring the government to make somewhat finer grained distinctions about what it can and cannot disclose, it might as well close up shop. The state secrets privilege normally allows the government to refuse to disclose certain information within an ongoing litigation in the interests of national security. Now the Administration is trying to use the privilege to prevent litigation entirely, and, in particular, litigation that accuses the Executive of illegal and unconstitutional activity. Letting the government march into court and shut down inquiries into its possibly illegal actions on its mere say-so creates the worst of bad incentives. If the government can do so in this case, it can and will do the same thing whenever the legality of its actions is challenged in the future, and then we will be well down the road to the destruction of our constitutional system of checks and balances. What is at stake in this case is the principle that the Executive, like all other government servants, is subject to the rule of law.

I do not mean to suggest that the state secrets privilege should not exist or that it does not have considerable value. Rather, the claim is that the government must do more than simply assert the privilege. The burden should rest on the government to make a fair showing about what elements it can and cannot disclose, and it should be required to assert the privilege in the way that is least destructive of the orderly determination of legal claims. This is especially so when the legality of the government's own actions is at issue. Courts should be reluctant to allow the privilege to quash lawsuits entirely unless there is no practical alternative; the better course is to limit the disclosure of particular types of information, hold in camera hearings, and use other devices to allow the ordinary course of legal proceedings to continue. What the government is doing here is short circuiting that careful balancing of interests. It is trying to stonewall the investigation.

Moreover, the government's demand that Judge Taylor drop everything and fly to Washington to read a secret legal brief is a fairly transparent attempt to impede the procedings. The government transports secret information and sensitive objects all the time. The notion that it cannot transport a file from Washington to Detroit without risking national security is little short of ludicrous. The government will have to do better than this if it wants people to take its claims seriously.

At some point in the process, the court may decide that certain details of the government's program may not be disclosed and it may uphold the state secrets privilege with respect to some elements of the government's program. But that is a far cry from what the government is asking now. The state secrets privilege does not mean and was never intended to mean that the government need do nothing to defend itself other than tell the court that it is the government and therefore it cannot be questioned about its actions.

An Asymmetrical Assault on Reality

David Luban

Three Guantanamo inmates hanged themselves on Saturday. Could it be that holding people for years in a limbo of rightlessness, telling them that they may be prisoners until the end of the war on terror, which has no end, and reminding them that their future does not exist, might drive them to suicide?

Absolutely not, according to the Guantanamo commandant, Rear Admiral Harry B. Harris, Jr. No American needs to suffer a single pang of conscience or a single moment of doubt about the endless detentions at Guantanamo. Don’t think of these as suicides, Harris tells us. Think of them as brutal attacks, sort of small-scale 9/11s. “They are smart, they are creative, they are committed,” Admiral Harris said. “They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.” (Other U.S. officials dismissed the suicides as a "PR stunt".)

Those fiends in Al Qaeda, is there any atrocity to which they won’t stoop? Today we learn that they actually hid from their guards to commit suicide. The perfidiousness of their ruthless attack boggles the mind of decent Americans. They have taken advantage of our good-hearted, trusting nature and hit us below the belt by killing themselves.

Not only that: the New York Times reports that General Bantz J. Craddock, the Southcom commander, thinks the suicides “may have been timed to affect the Supreme Court decision in the Hamdan case” about the legality of military commissions. “This may be an attempt to influence the judicial proceedings in that perspective.”

Eureka! Now we can see the full depths of their plan. Recall the important warning in the Pentagon’s National Defense Strategy document: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” ‘Strategy of the weak’ is another term for asymmetric warfare. The idea is that the terrorists will ruthlessly manipulate law and public opinion to tie down the American Gulliver with a Lilliputian’s net of rulings and regulations. You might think that there is a difference between, say, protesting before the U.N.’s Committee Against Torture, litigating in the Supreme Court, and blowing up innocent civilians. Or between blowing up innocent civilians and hanging yourself in jail. But it’s just not true. They are alternative faces of the same evil, and we have to be on our guard against all of them.

The argument is this. Nobody can prevail against the United States on the battlefield. So they have to prevail against the United States off the battlefield, by swaying U.S. public opinion, inciting hatred or contempt for the United States around the world, or even getting our own courts – packed, of course, with liberal activist judges – to tie the hands of our military. (As Rambo asked, “Are they going to let us win this time?” Not if the lawyers and judges have their way!)

It follows that anything that either makes us look bad, or sways our judges to administer the stab in the back on the home front, is a weapon of the weak. Jailhouse suicides make us look bad – and the three men who killed themselves were hardened Al Qaeda types. Ergo, it was an attack on our forces using a weapon of the weak. Don’t think they killed themselves because they were unhappy about their potential life sentences without charges or a trial. They weren’t unhappy, only strategic and ruthless.

So, instead of national shame, Harris and Craddock give us national shamelessness.

You might think that their paranoid world view is confined to the true believers who write stuff like the National Defense Strategy or, like Admiral Harris, parrot its line. Would that it were so. Unfortunately, the same way of thinking has begun to enter our jurisprudence. Remember Judge David Trager’s opinion dismissing claims by Maher Arar, who was kidnapped by U.S. authorities and rendered to Syria for torture. According to Trager, allowing Arar to pursue his claims in court might reveal information that would make us or our allies look bad, and that would undermine national security. As I observed here, the principle seems to be that anything that makes us look bad undermines national security, and therefore the worse our conduct, the more it has to be insulated from accountability. And just last month, Judge T.S. Ellis III threw Khaled el-Masri’s case against U.S. officials out of court because his lawsuit – based on his kidnapping, rendition, and imprisonment – might reveal state secrets and therefore damage national security. The state secrets it might have revealed are, of course, details about outrageous U.S. government conduct. The logic is impeccable. Public knowledge of outrageous U.S. conduct might provoke a backlash that could make the U.S. halt the conduct. That’s the strategy of the weak. They can’t beat us on the battlefield, so they hope to resort to the ultimate evil action: publicizing what we do.

Of course, there might be another way to look at it. If I may enlist the help of a philosophical heavyweight, I will quote Immanuel Kant (in Perpetual Peace): “All actions relating to the right of other men are unjust if their maxim is not consistent with publicity.” As Kant explains, “if I cannot publicly avow it without inevitably exciting universal opposition to my project, the necessary and universal opposition which can be foreseen a priori is due only to the injustice with which the maxim threatens everyone.” If it can’t be publicized, it can’t be just.

Well, Kant is not exactly the favorite philosopher of the Bush administration and its supporters. Robert Kagan, whose book Of Paradise and Power beautifully articulates the philosophy underlying the National Defense Strategy, sneers at Europeans for wishing to use international fora and judicial processes to create a “Kantian paradise” – tying down the U.S. with the imaginary fetters of law and morality. If the Pentagon had to choose a different European philosopher, it would evidently be Nietzsche, who argued in On the Genealogy of Morals that morality is simply the subtle device of the weak to master the strong.

But the Bush administration is not big on European philosophers. So perhaps we can develop the philosophy in purely Bushian terms. To highlight its logic, I will present it in mathematical form, the way that Spinoza presented his ethics:


Axiom 1: We are good people.
Axiom 2:
Our enemies are bad people.
Axiom 3:
Anything that helps good people beat bad people is good.

Corollary 1: Whatever we do to beat our enemies is good.
Corollary 2: Whatever hinders us from doing what we do to beat our enemies is bad. Theorem 1: Anything that makes us look bad is false. (Proof: If it makes us look bad, it must be false, because, according to Corollary 1, what we do to beat our enemies is good, not
bad.)
Corollary 3: It can’t be true that the Guantanamo prisoners killed themselves because of how we treated them. (Proof: That would make us look bad. Whatever makes us look bad is false.)
Surprising Corollary 4: Facts that make us look bad are false.
(Proof: Follows directly from Theorem 1.) (Comment: If you thought that facts can’t be false, you haven’t understood that truth and falsity are moral terms: truth is what good people say, falsity is what bad people say. If bad people state facts, those facts are false.)
Theorem 2: Laws that constrain us are bad. (Proof: Follows directly from Corollary 2.) But –
Axiom 4: Good people support the rule of law, and that makes the rule of law good.
Corollary 4: We support the rule of law. (Proof: By Axiom 1, we’re good people; and by Axiom 4, good people support the rule of law.)
Surprising Theorem 3: Laws that constrain us don’t exist. (Proof: By Theorem 2, a law that constrains us would be bad. But by Axiom 4, the rule of law is good. Therefore there cannot be such a thing as a law that constrains us.)
Axiom 5: Anything that anyone uses against us is a weapon of our enemies.
Decisive Theorem: Any international forum or legal argument that might constrain us, or anything that might make us look bad, is a weapon of our enemies.
Axiom 6: We’re strong and our enemies are weak.
Corollary 5: Any international forum or legal argument that might constrain us, or anything that might make us look bad, is a weapon of the weak. To put it in other words, it is an act of asymmetric war against us.

QED

The National Surveillance State Goes Local

JB

In my previous post on the National Surveillance State, I pointed out that although the federal government is defending its domestic surveillance and datamining operations to discover threats to national security, there is no reason why the same procedures and technologies couldn't be harnessed to aid in everyday domestic criminal law enforcement. Indeed, once the tools are available, not only federal law enforcement officials, but also state and local officials, will want to use them for everyday law enforcement problems. So domestic electronic surveillance and data mining will not be limited to the most urgent threats to national security. Rather, they may be become part of the everyday operations of state and local law enforcement, if legislatures permit and fund these operations.

Today's Boston Globe includes a story describing how Rhode Island officials are seeking some of the same tools that the feds have-- to combat not terrorism but domestic Internet crime:

The Rhode Island General Assembly is considering legislation that could give police access to Internet and phone records and credit card and bank information without a warrant or other court review, civil libertarians said.

The state police said the legislation would help track down the increasing instances of Internet-based crime, including fraud and child exploitation. They say they are only seeking expanded access to Internet records, not phone or banking records.

But lawyers familiar with this area of law say the bills as crafted would give Rhode island police the right to obtain the same information that some of the nation's major communication companies have been accused of giving to the National Security Agency illegally.
. . . .

State police say going before a judge to get a warrant can be time-consuming and cumbersome.

Cpl. John Killian, the state police's computer crime specialist, said it can take three to four hours of work to obtain a warrant.

"There's a balance between privacy and police authority," Killian said. "The current situation is weighted too far on the side of privacy."


Sunday, June 11, 2006

Sex Traffic at the World Cup

Mark Graber

The World Cup is a struggle for supremacy and national pride. This year, at the tournament in Germany, the World Cup is a different sort of struggle for some 40,000 women: a struggle for survival. 40,000 is the Coalition Against Trafficking in Women's (CATW) estimate of how many women have been taken to Germany to fill the extra brothels German entrepreneurs built in preparation for the event. These women have been brought from as far away as Brazil, some lured with false promises of an "all-expenses-paid trip to Germany," others abducted and forced across borders. But no matter where they come from or how they are brought, their fates are the same: to have their bodies be reduced to commodities to be bought and sold, used and abused by pimps and johns from all over the world.

Once these women become prostitutes, they will face a 62% chance of being raped and a 73% chance of being physically abused. Many will be forced to service upwards of 20 men a day, sometimes multiple men at the same time. A number will become substance abusers, forced by their pimps to take drugs to keep them going. Their chance of dying will be 40% than others in their age group.

Efforts to stop this tide of sexual slavery have been minimal at best. English officials have set up campaigns warning travelers to the World Cup that some of the prostitutes they visit may be trafficked. Members of Operation Pentameter, an English police organization working against human trafficking, have promised to "intervene" if they learn of English citizens committing crimes with trafficked prostitutes, but what can they do in a country where prostitution is legal and they have no jurisdiction? Still, England is at least trying to back their anti-trafficking language with action. Not so much can be said for the United States, which has publicly expressed concern over trafficking and the World Cup, but still ranked Germany as a country that "fully complies with the legislation's minimum standards" against human trafficking. This means the U.S. will take no action to pressure Germany into stopping the illegal trade. Even Sweden, widely recognized as having the best anti-trafficking and anti-prostitution policies in the world, has only taken symbolic steps in combating the link between sex trafficking and the World Cup, pledging that no member of the Swedish team will visit a brothel. Nice idea, but it won't even make a dent in the demand for prostitution. 40,000 women need more: they need for the global community to reveal their plight for what it is and take decisive action to stop it.

[This entry was written entirely by Rebecca Graber, age 16]

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