I’m willing to stipulate that the data mining reforms the Obama administration put into effect are more sophisticated than the previous clumsy, illegal, unconstitutional, and immoral eavesdropping regimes. Yet, there’s one weak link: the FISA court. Ron Fournier asks, “Why does a secret federal court almost always side with the government’s requests to seize information.” Penza responds:
The problem might arise from the nature of FISA itself: it is a non-adversarial process where only the government presents information and where that information is not subject to challenge. In a regular investigation, there is at least some potential for the target of the investigation to cry “foul” and bring information to the court that undermines the government’s basis for pursuing the investigation. Regular warrants can be challenged as overbroad, overly intrusive, or not supportable by probable cause or even reasonable suspicion. No such mechanism exists in FISA. Indeed, this is a feature not a bug because doing so in the regular way would alert targets that they have been detected, making it more difficult to track and counter an organization like al-Qaeda.
But a mechanism could be added to adjust the FISA process to introduce some check on the government’s ability to obtain a rubber stamp from a court without compromising its ability to hide its activities from the targets of national-security investigations. And no, the best such process does not lie in allowing egomaniacs like Snowden and Greenwald to have veto power over what the government is allowed to do. Rather, it lies in introducing an adversary — call it an ombudsman or a public defender — into the FISA proceedings as an institutional skeptic, empowered to participate in FISA proceedings to challenge the government’s requests as overbroad or not supported by reasonable suspicion.
Provided that the ombudsman’s activities were limited by the same secrecy rules that bind FISA already (and that Snowden flaunted with no legal basis for doing so), this would introduce a check against the government without compromising the basic purpose for which FISA was established in the first place. At least, it is a place to begin a real debate focused on policy options instead of the Snowden/Greenwald vanity exercise we have right now.
I’m sure someone will argue that that all sounds slow and expensive. Before we store zettabytes of information in a permanent cloud in Utah, perhaps we should spend a dollar and ask if the whole process is worth the bother to begin with. That brings me to what is another excellent explanation and defense of the NSA process by David Simon.
There are reasons to object to governmental overreach in the name of law enforcement and anti-terrorism. And it is certainly problematic that our national security apparatus demands a judicial review of our law enforcement activity behind closed doors, but again, FISA is a basic improvement on the preceding vacuum it replaced. Certainly — and I find myself in rare agreement with the Rand Pauls of the world on this one — we might be more incensed at the notion of an American executive branch firing missles at U.S. citizens and killing them without the benefit of even an in absentia legal proceeding. Or ashamed at a racially-targeted sentencing guideline that subjects rock cocaine users to seventeen times the penalty of powdered-cocaine users? Or aghast at a civil forfeiture logic that allows government to seize private property and then requires citizens to prove a negative — that it was not purchased with money from ill-gotten gains.
There is a lot of authoritarian overreach in American society, both from the drug war and the war on terror.
But those planes really did hit those buildings. And that bomb did indeed blow up at the finish line of the Boston marathon. And we really are in a continuing, low-intensity, high-risk conflict with a diffuse, committed and ideologically-motivated enemy. And for a moment, just imagine how much bloviating would be wafting across our political spectrum if, in the wake of an incident of domestic terrorism, an American president and his administration had failed to take full advantage of the existing telephonic data to do what is possible to find those needles in the haystacks. After all, we as a people, through our elected representatives, drafted and passed FISA and the Patriot Act and what has been done here, with Verizon and assuredly with other carriers, is possible under that legislation. Indeed, one Republican author of the law, who was quoted as saying he didn’t think the Patriot Act would be so used, has, in this frantic little moment of national overstatement, revealed himself to be either a political coward or an incompetent legislator. He asked for this. We asked for this. We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.
Frankly, I’m a bit amazed that the NSA and FBI have their shit together enough to be consistently doing what they should be doing with the vast big-data stream of electronic communication. For us, now — years into this war-footing and this legal dynamic — to loudly proclaim our indignation at the maintenance of an essential and comprehensive investigative database while at the same time insisting on a proactive response to the inevitable attempts at terrorism is as childish as it is obtuse. We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.
Clay Shirky knocks Simon’s lampooning of technological monsters.
If the government remains interested solely in foreign threats to US citizens, this kind of power will be held in check; we have a National Security Agency to help keep the nation secure, and we should hope it succeeds. But history has few happy stories to tell of unchecked government power. All security comes at a cost, and recent American history reminds us that people focused on routing an enemy can end up destroying the village in order to save it.
Simon’s argument that we should trust the NSA to respect American’s privacy without much in the way of public oversight may carry the day. Certainly, that’s the argument we should be having. But he is wrong to suggest – and no one on any side of the debate should believe – that the NSA’s powers are anything less than extraordinary.
Again, the FISA process is flawed – it has no adversary. It’s not a court, but rather a rubber stamp.
There’s also the busted classification process.
But, let’s just lampoon Edward Snowdon, because many Chinese netizens think he’s the best America has to offer.