Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Reflecting on PRISM: The Institutional Failures that Led to Surveillance Culture
|
Monday, June 10, 2013
Reflecting on PRISM: The Institutional Failures that Led to Surveillance Culture
Guest Blogger Anjali Dalal We live in a culture of secret surveillance, a topic I have written about recently, here. PRISM and the Verizon order are instances of how such a culture can manifest. And though they are the focal point of current public outrage, they are merely symptoms - the visible manifestations of a more serious ailment: institutional failures that allow the development of secret surveillance. There are two components of secret surveillance – the act of surveillance and the secrecy under which it takes place. Importantly, neither component is necessarily problematic. Surveillance and secrecy are in fact both necessary for effective law enforcement and national security. Law enforcement agencies surely do not have to publish the names of people they are investigating and wire-tapping (with warrants!) has led to numerous convictions. The problem arises in the secrecy of the process by which we arrive at PRISM and the Verizon order. Secrecy of process threatens both the deliberative process and public accountability. There are two important measures that have contributed to this secrecy of process. I’ll take each in turn. No Congressionally Authorized Domestic Intelligence Agency First, formally speaking, the United States has not authorized a domestic intelligence agency. In the U.S., the main institutional intelligence players are the FBI and the CIA, both of which have Congressional statutes that authorize their existence. The FBI’s authority emerges from 28 USC 533 which states that the Attorney General is authorized to appoint officials "to detect and prosecute crimes against the United States." The CIA’s authority emerges from a post-World War II statute, the National Security Act of 1947, which authorized the first peacetime intelligence gathering organization the country had (officially) ever seen. Whereas the FBI is responsible for federal law enforcement, the CIA is responsible for foreign intelligence gathering and is explicitly prohibited from engaging in domestic activities. Comparatively, the UK has both an FBI corollary (the Metropolitan Police) and a CIA corollary (MI6), and it also has a specifically designated domestic intelligence gathering outfit – MI5. The United States made an active decision not to create a domestic intelligence gathering organization. This comes from the historical instinct of our founders to move away from "general warrants" and to instead require "particularized suspicion" before conducting searches or seizures, a point which has been revisited and reinforced over the course of history. Moreover, our history of domestic surveillance has also been relatively bad. Consider the following domestic surveillance initiatives: the Palmer Raids, COINTELPRO, Watergate, and the army surveillance of Americans that motivated Laird v. Tatum – each of these initiatives is characterized by governmental abuse, has created discord and mistrust between the government and the public, and has delegitimized government institutions in a way that has had repercussions for years to come. Though we have no formal domestic intelligence program, the PRISM disclosure and the Verizon order make very clear what some have long suspected: we have a very robust informal domestic intelligence program and it looks like its managed, at least in part, by the National Security Agency (NSA). Congress has never formally authorized the NSA. Despite this, the agency has received annual funding almost yearly since 1978 under the annual intelligence authorization acts. This is problematic because traditionally there are two steps required for Congress to legitimize an intelligence gathering agency within the Executive Branch: first, it must authorize the creation of the entity (as it did with the CIA and the FBI); and second, it must appropriate money in the annual budget to support the entity. This recognizes Congress’s authority to control Executive Power in the first instance and also for years in the future. In this way, Congress is an on-going check and balance on the administrative powers of the Executive branch. It conducts oversight through its ability to establish a source of executive power and also through its annual authority to fund or defund existing institutions. There are important reasons why Congress has to both authorize and appropriate. They involve two wholly different conversations. The first is a conversation about whether or not to do something; the second is a conversation about how to do something that one has already decided to do. Whereas the first involves a public debate on the role of domestic surveillance in the pursuit of national security, the latter is merely an implementing debate with the assumption being that we have collectively agreed to authorize domestic surveillance. By bypassing the authorization debate and moving directly to the appropriation debate, Congress operates from a place that implicitly accepts domestic surveillance as an appropriate function of government. Practically speaking, there are separate and distinct limitations of budgetary oversight. Budget bills are thousands of pages long, filled with detailed line items and complex analysis. The Congressional oversight given to individual intelligence programs within such a massive document is going to be comparatively less than it would be with a proposed statute authorizing an American MI5. Another such practical limitation occurs when Congress finds itself in a budget crisis. Between 2005 and 2010, no intelligence authorizations were passed by Congress. As one Congressional Research Service report indicates, "[a]lthough the National Security Act requires intelligence activities to be specifically authorized, this requirement had been satisfied…by one-sentence catchall provisions in defense appropriations acts authorizing intelligence activities." This work-around further weakened Congressional oversight over intelligence activities in between 2005 and 2010, a critical time in the development of PRISM, which began in 2007. NSA Was Created by a Defense Department Directive Second, the NSA was formally created by directive of the Secretary of Defense, acting under specific instructions from the President in 1952. Since then, the NSA operates under guidance provided by Executive Order 12,333, issued under President Reagan and subsequently amended through Executive Orders 13,284, 13,355 and 13,470, all issued under President George W. Bush. Under E.O. 12,333, the role of the NSA is to "collect (including through clandestine means), process, analyze, produce, and disseminate signals intelligence information and data for foreign intelligence and counterintelligence purposes to support national and departmental mission." This background illustrates two problematic aspects of the NSA’s creation – a) it was a national security measure created by the Executive Branch, sitting within the Executive Branch and b) the NSA is situated within the Defense Department and yet is authorized to monitor domestic conversation. By creating and regulating the NSA largely through Executive Orders, the Executive Branch maintains significant control over operations and does so without the inter-branch or public deliberation necessary for an institution whose mere existence infringes on our most basic speech and privacy rights. Of course some of these infringing activities may be well within the bounds of the Constitution, but this discussion must be had publicly and transparently. Furthermore, given the strength of the national security mandate and the blowback the Executive Branch faces when there is a terrorist attack, on a small or large scale, the Executive Branch has every incentive to pursue an aggressive surveillance agenda. By allowing the Executive Branch to create and provide guidance for our intelligence operations, it is unsurprising that the programs created and methods adopted are aggressive and pushing the boundaries of constitutionality. Finally, placing the NSA within the Department of Defense further obscures it role in the lives of Americans. The Department of Defense is responsible for our military. It’s the agency that controls the brave women and men who fight our wars and defend the country against attack. However, the military is not authorized to conduct surveillance on Americans. Nearly fifty years ago, the country convulsed upon learning about massive government-led domestic spying scandal that included Watergate, the Keith case, and Laird v. Tatum. Laird emerged from an article published in the January 1970 issue of The Washington Monthly, titled "CONUS Intelligence: The Army Watches Civilian Politics," by Christopher H. Pyle, a lawyer and former captain in Military Intelligence. Pyle stated that "[tlhe U.S. Army has been closely watching civilian political activity within the United States. Nearly 1,000 plainclothes investigators . . . keep track of political protests of all kinds-from Klan rallies in North Carolina to antiwar speeches at Harvard." The outrage following the story was immediate and now, seemingly familiar. And though the fact the Army was spying on Americans was the cause of the outrage, the first order problem was that an institution that had no business spying on Americans was secretly authorized to spy on Americans. As information continues to come out about PRISM and the Verizon order, shutting down problematic practices will become a priority, but correcting the institutional failures that have led to this situation will need to become a priority as well. Anjali Dalal is a Resident Fellow at the Information Society Project at Yale Law School. You can reach her by e-mail at anjali.dalal at yale.edu Posted 10:57 PM by Guest Blogger [link]
|
Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |