Our Enemy the State
Tim F. at Balloon Juice gathers the threads of the latest journalism and analysis on the passage of the recent FISA bill. The bottom line is that, in practical terms, the executive can spy on anyone for any reason. The FISA court has been further neutered in two important ways: the grounds on which it can reject a program have been narrowed; and under the new process, a FISA rejection merely starts an appeal process during which the “rejected” program continues.
No analyst I’ve seen has remarked on the amusingly Orwellian touch, that the law narrows impediments to spying by redefining “electronic surveillance” to exclude a lot of actions that are, in plain english, electronic surveillance. Rather than say “this kind of electronic surveillance is okay,” it appear to say “this kind of electronic surveillance isn’t electronic surveillance.” Nice.
Tim links to Marty Lederman reiterating a point I made weeks ago:
Obviously, what happened is that the Democratic leadership decided not to insist that Democrats could vote only to allow warrantless foreign-to-foreign surveillance. Presumably, the Democrats could have simply voted in favor of the Democratic bill, giving the Administration what it professed to need, and sent that bill to the President for his veto. But the leadership chose not to instruct their caucus to do so. And no one has yet quite uncovered the story of why Speaker Pelosi and crew did not simply insist on that course of action.
The somewhat tautological answer is, because it wasn’t that important to them.
Meanwhile, as Gary Farber pointed out to many people, the Director of National Intelligence has decided to make intelligence much more national:
The U.S.’s top intelligence official has greatly expanded the range of federal and local authorities who can get access to information from the nation’s vast network of spy satellites in the U.S.
More:
According to officials, one of the department’s first objectives will be to use the network to enhance border security, determine how best to secure critical infrastructure and help emergency responders after natural disasters. Sometime next year, officials will examine how the satellites can aid federal and local law-enforcement agencies, covering both criminal and civil law. The department is still working on determining how it will engage law enforcement officials and what kind of support it will give them.
From a political standpoint, what’s going on here is that the intelligence community is cutting more of the government in on its action. The effect of this, I daresay its purpose, is to invest more of the government in the intelligence community’s power. Remember all the incovenience about the Ashcroft Justice Department refusing to certify the Terrorist Surveillance Program. One solution to such problems is to put an authoritharian hack in charge of Justice. But another, more durable solution, is to addict ever more of the law-enforcement bureaucracy at all levels of government to the sweet, sweet flow of surveillance information of all kinds.
The common element to both of these recent developments is that they go beyond party, to structural incentives that exist prior to partisan politics: to the desire of organizations to escape accountability and increase control. Which gets to the problem: for all the failings of libertarianism as a poltical program, I remain convinced that the libertarian critique of the state is largely correct.
Comment by Thoreau —
August 18, 2007 @ 7:23 pm
Isn’t part of the point of intelligence operations that they try to minimize the number of people who are in the loop? Sharing information with vast swaths of US law enforcement seems to defeat that purpose. Sure, they might not plan to tell the local cop anything that could compromise a person deep undercover overseas but (1) even more mundane information still tells you something about capabilities and limitations and (2) every time you share you risk letting slip a subtle clue that you didn’t intend to let slip.
Of course, the driver of this is presumably not terrorism but rather the drug war. The Patriot Act was basically a drug war wish list. They won’t be giving cops info on many Al Qaeda cells, because there simply aren’t that many (any?) in the US. But they will no doubt share info on drug suspects.
Prediction: Sharing of intelligence community data with law enforcement will lead to drug cases where the prosecutors insist that it’s too dangerous to have an open trial, because they’d have to compromise delicate sources and methods.
Comment by Jim Henley —
August 18, 2007 @ 7:27 pm
Ding ding ding!
Comment by sean —
August 18, 2007 @ 7:36 pm
Jim:
“Rather than say “this kind of electronic surveillance is okay,†it appear to say “this kind of electronic surveillance isn’t electronic surveillance.†Nice.”
I had a conversation with a friend of mine a while back that pointed out this sort of distinction of the Bush administration from other enthusiastically expansionist/law-breaking presidencies like Nixon’s. Whereas Nixon’s crew seemed to grok that they were in fact breaking laws, the Bush M.O. is to break laws while insisting that they aren’t.
Comment by sean —
August 18, 2007 @ 7:39 pm
Not to double-post, but, well, to double-post:
“But another, more durable solution, is to addict ever more of the law-enforcement bureaucracy at all levels of government to the sweet, sweet flow of surveillance information of all kinds.”
You know what does a nice job demonstrating this on a fairly regular basis? The Law & Order franchise. If I had a nickel for every time Elliot Stabler or Jack McCoy said “Thank god for the Patriot Act” while tapping a child molester’s cellphone, I’d have a couple dozen nickels.
Comment by Doug —
August 18, 2007 @ 7:54 pm
Social Security for Spooks?
Comment by Gary Farber —
August 19, 2007 @ 1:17 am
But another, more durable solution, is to addict ever more of the law-enforcement bureaucracy at all levels of government to the sweet, sweet flow of surveillance information of all kinds.”
That’s exactly right.
That’s exactly what I was getting at when I wrote:
And “customers” really is the word people in the “intelligence community” use, you know.
The cliche, of course, is that “drug pushers” say “the first one is for free.” Gotta get you hooked.
(Let’s set aside that this isn’t a particularly accurate model of most drug user/seller interactions, at any time.)
I’m still really hoping to hear the takes of Greenwald, Balkin, and Lederman, on all this.
“Isn’t part of the point of intelligence operations that they try to minimize the number of people who are in the loop?”
No. Raw intel, yes. Stuff that will reveal “sources and methods,” yes. All scrubbed data, no.
Most satellite data has been widely distributed in military channels for many years; this is just expanding the use of scrubbed stuff to law enforcement. It’s not as if it’s related to revealing that we have a mole or HUMINT source somewhere.
“Of course, the driver of this is presumably not terrorism but rather the drug war.”
No, I believe you’re seriously wrong there; everything I’ve read has indicated that the “drug war,” while certainly not abandoned, has been way way way backseated — like in a double-length bus — to terrorism investigation.
You’re right that lots of it was wish-list stuff from the drug war, but that doesn’t mean that the drug war has maintained anything like the same priority it had with the FBI or anyone else besides DEA, since 9/11.
Now if it were porn you were talking about…. (Three quarters kidding.)
Comment by R2K —
August 19, 2007 @ 7:36 am
Highly depressing.
Comment by cfw —
August 19, 2007 @ 8:07 am
I see hi-tech, invasive as it can be, surveillance coming into the drug war – which will expand as the real war contracts (to keep full employment in the law enforcement community). Those in the illegal alien catch and release business are no doubt also looking for help. Then, we can expect the procurement fraud/investor fraud, public integrity case folks calling for all the help they can get. If we have partisan (more partisan) US Attys, the sharing of data will occur more quickly. Death penalty folks, organized crime folks, gang suppression, prison discipline folks, “let’s get the defense counsel” folks – all will be interested customers. It is inherent in the adversary system that the $125,000 per year government attorney, hoping to be promoted or elected to office, will want all the data he/she can lay hands on, civil rights be damned. That’s why some “wall” was (and is) needed between domestic law enforcement and outside the borders (unfettered) work.
Comment by KCinDC —
August 19, 2007 @ 9:30 am
I’m not sure about that, Sean. Wasn’t Nixon the originator of “when the president does it, that means that it is not illegal”?
Comment by LarryM —
August 19, 2007 @ 10:17 am
Two somewhat related thoughts.
First, while some of the fears being expressed about our journey towards authoritarianism may (and I emphasize may) be overblown, I think that our journey towards a national surveillance state is sadly inevitable.
Secondly, given the events of the last 7 years, and the apparent unwillingness of either party to push back in a serious way regarding our foreign policy and the national security state, every day I move more int he direction of libertarianism. Left libertarianism, to be sure, but still.
Comment by SomeCallMeTim —
August 19, 2007 @ 10:40 am
I remain convinced that the libertarian critique of the state is largely correct.
I’m not there yet, but I’m getting there.
Comment by CharleyCarp —
August 19, 2007 @ 11:07 am
I remain convinced that the libertarian critique of the state is largely correct.
I agree, more or less, but the question is what to do about it, recognizing that (a) perfection isn’t possible and (b) a lot of potential cures are worse than diseases.
At the beginning, though, and through-out, anyone proposing solutions has to keep in mind the difference between state actions that tend to empower the powerful, and state actions that tend to empower the disempowered. IMO, the failure to make this distinction — which isn’t always a perfectly bright line (see point (a) above) — makes the libertarian critique worse than useless as a guide for making changes.
Comment by Nell —
August 19, 2007 @ 2:13 pm
will lead to drug cases where the prosecutors insist that it’s too dangerous to have an open trial, because they’d have to compromise delicate sources and methods.
Or murder/torture cases that never get brought, for the same spurious reasons. As in the ‘House of Death’…
Comment by LarryM —
August 19, 2007 @ 2:19 pm
At the beginning, though, and through-out, anyone proposing solutions has to keep in mind the difference between state actions that tend to empower the powerful, and state actions that tend to empower the disempowered. IMO, the failure to make this distinction — which isn’t always a perfectly bright line (see point (a) above) — makes the libertarian critique worse than useless as a guide for making changes.
I think we are coming from a similar starting point. But the step that I’ve taken, and you haven’t, is this. The problem isn’t so much the absence of a bright line. The problem is that it’s probably impossible to set up a system of government which allows affirmative actions to empower the disempowered, without also allowing the reverse, as well as every other bad thing that governments do. Which is, I guess, one way of stating the “libertarian critique of the state” that Jim refers to. Well, one aspect of that critique anyway.
Which isn’t to say that I’m all the way there myself. In a democracy, even one where the power of the government is constitutionally very limited, I see no way to prevent a kind of mission creep, where you end up with … well, more or less what we have now, for good and ill.
Comment by CaseyL —
August 19, 2007 @ 3:16 pm
Expanded state surveillance powers wouldn’t get very far if the private companies which provide the communications networks didn’t cooperate with the state.
Now, one positive impact of libertarianism’s emphasis on free market solutions could be if coders, hackers, etc. (most of whom fancy themselves libertarians anyway) came up with ways to monkeywrench surveillance. Assuming there exists a market for people (ordinary, law-abiding people; not just the ones with a criminal stake in evading surveillance) libertarian entrepreneurs could fill it.
Why not come up with a telecommunication device that can use any network available, and can also “hopscotch” networks every 20 seconds or so? The call or logon doesn’t interrupt, but randomly changes from network to network, so that anyone trying to listen in can’t follow it.
Or how about a phone that lets the customer come up with his or her own number? One that combines letters and symbols with numbers, to reduce the chances of accidentally choosing an already-assigned number. The customer number would not appear in any directory, so no one gets it without the customer giving it to them.
For consumers, the choices are narrow but still there. Use cash to buy reading materials, for example, and don’t join any book or CD clubs that keep track of your purchases.
Counter-RFID technology is also a market waiting to be filled. There are anecdotal suggestions of how to protect one’s passport from unauthorized scanning (which unfortunately doesn’t apply to governmental scanners), but RFIDs are popping up all over the place. I still need a tinfoil hat to think the government’s going to order everyone to get chipped, but the tinfoil is getting thinner and thinner: if and when that time comes, it would be good to know how to monkeywrench a personal RFID.
Comment by Gary Farber —
August 19, 2007 @ 3:58 pm
“I still need a tinfoil hat to think the government’s going to order everyone to get chipped”
China would be first. Or possibly Singapore.
You can use PGP, of course.
But on the practical side, for a long time to come, if the government’s agents really really want to read your files, or search your place, or whatever, they’re almost certainly going to succeed, by one method or another. They can come in while you’re out, and install a key-recording program on your computer. They could just get a search warrant and confiscate all your stuff; they could declare you an illegal enemy combatant, and waterboard and isolation tank you for your crypto key. And so on.
I realize you weren’t talking about preventing any of this stuff, Nell, and were just talking about ways to make things harder on them in general. Good questions, and I don’t intend to discourage that; just noting the other point.
I do recommend everyone read the China piece, though, for some tips on what at least one country is doing in a busy way as regards native surveillance infrastructure.
Comment by Nell —
August 19, 2007 @ 4:25 pm
@Gary: Eh? I think you’re responding to someone else’s suggestions, maybe Casey’s? My only comment was to point to an example that reinforces Thoreau’s point about the effects of secret intel-gathering.
Comment by Thoreau —
August 19, 2007 @ 4:25 pm
The libertarian critique of the state is pretty much dead-on accurate.
The libertarian proposal for a replacement is better as a set of suggestions to keep in mind than as a detailed point-by-point plan. Which is why I’m a soft-core left-libertarian, not a hard-core orthodox libertarian.
Comment by Gary Farber —
August 19, 2007 @ 8:04 pm
“@Gary: Eh? I think you’re responding to someone else’s suggestions, maybe Casey’s?”
Oops, yes, I meant CaseyL; sorry, CaseyL!
Comment by b-psycho —
August 19, 2007 @ 10:13 pm
Sure, we know the difference. When the latter is proposed, pigs fly & the moon turns into cheese.
That’s not how politics works. It’s impossible to empower people through a 3rd party while withholding power from said 3rd party.
Comment by Neel Krishnaswami —
August 20, 2007 @ 12:58 am
15: “Why not come up with a telecommunication device that can use any network available, and can also “hopscotch†networks every 20 seconds or so? The call or logon doesn’t interrupt, but randomly changes from network to network, so that anyone trying to listen in can’t follow it.”
It is legal to write software that lets you do this, and in fact you can download GNU Radio and write it quite easily. However, it’s illegal to manufacture hardware that can run this software. The FCC requires that radio manufacturers make all end-user hardware non-user-configurable.
Comment by CharleyCarp —
August 20, 2007 @ 1:12 am
20 — A perfect illustration. No one would argue with this statement. But the question is what is the consequence of the inevitable flaw in such a scheme: throw out baby with bathwater?
Comment by The other Eric —
August 20, 2007 @ 8:10 am
This is so bad that it isn’t funny. And I’m incredibly angry that Reid and Pelosi are letting this stuff ever reach the floor.
I thought we’d had some luck, these last few years, in giving the Democrats a backbone transplant. But this work has been obviously insufficient, and I’m not sure how to proceed from here. Depressing.
Aside from discuss political philosophy on the intertubes, what can we do?
Comment by LarryM —
August 20, 2007 @ 10:15 am
Eric,
Move to Canada?
Seriously, the problem at it’s most basic level is that most people don’t care. That’s ESPECIALLY true of the civil liberties stuff. In fact, it looks like the majority of people who DO care, care in the wrong way. Opinion polls on these issues are not encouraging to say the least.
As to the war on Terra, in my pessimistic days I think the same thing – disenchantment with Iraq hasn’t caused most people to question the core principles of our interventionist foreign policy, and the day after we bomb Iran the public will support the atrocity will by 3-1 margins.
In my less pessimistic days I think that the public HAS soured on war for the time being, but that won’t stop Bush & Cheney from starting a war with Iran.
My optimistic days? On this stuff, I don’t have any.
Trackback by www.buzzflash.net —
August 20, 2007 @ 12:43 pm
Our Enemy the State…
No analyst I’ve seen has remarked on the amusingly Orwellian touch, that the law narrows impediments to spying by redefining “electronic surveillance†to exclude a lot of actions that are, in plain english, electronic surveillance. Rather than sa…
Comment by Joshua Holmes —
August 20, 2007 @ 8:34 pm
The libertarian proposal for a replacement is better as a set of suggestions to keep in mind than as a detailed point-by-point plan.
The trick is that there isn’t much of a plan.
Comment by Thoreau —
August 20, 2007 @ 10:54 pm
Joshua-
Except that there is. No matter what objection you raise to the libertarian proposal, somebody can give you a very detailed Econ 101 explanation for why this will all work out perfectly.
Comment by Thoreau —
August 20, 2007 @ 10:54 pm
Note that “very detailed” is not the same as “very accurate.”
Comment by Vic Anderson —
August 21, 2007 @ 9:11 pm
Give DEM something to Reid: Fustercluck Pelosi; the Bushists have!