But What Do the Experts Know, Anyway?
A quick hit this evening/early morning. The CIA Journal has an interesting article suggesting that overt sources of information (that is, analysis of publicly available information) might be better and more effective for national intelligence purposes than covert, or secret information. [link]
Here is how Stephen Mercado, an analyst in the CIA Directorate of Science and Technology puts it:
We need to rethink the distinction between open sources and secrets. Too many policymakers and intelligence officers mistake secrecy for intelligence and assume that information covertly acquired is superior to that obtained openly. Yet, the distinction between overt and covert sources is less clear than such thinking suggests. Open sources often equal or surpass classified information in monitoring and analyzing such pressing problems as terrorism, proliferation, and counterintelligence. Slighting open source intelligence (OSINT) for secrets, obtained at far greater expense when available at all, is no way to run an intelligence community. Also, we must put to rest the notion that the private sector is the preferred OSINT agent. In the end, I would contend, the Intelligence Community (IC) needs to assign greater resources to open sources.Mercado's point strikes me as intuitively correct, and, indeed, could well describe the blogosphere, which tends not to break new news, but rather spends its time analyzing information that has already been made publicly available. In the end, much like the CIA process that Mercado is describing, bloggers can (but don't always) add significant value by assembling connections between disparate facts and by identifying trends or explanations that the mainstream media either aren't reporting or aren't paying attention to while they cultivate their "inside sources" hoping to acquire new "secret" information.
In any event, in view of the President's violations of FISA to collect "secret" information, this article made me wonder even more whether the politicians and cronies in charge really know what they're doing?
posted by Daniel at 1:30 AM
8 Comments:
'in view of the President's violations of FISA to collect "secret" information'
As the CIA Journal article says, the distinction between secret and open information is less than perfectly clear cut. The communications that NSA has been monitoring are secret only in a purported legally mandated sense. International phone calls, as I understand things, are made by radio transmission to satellites. Once a signal is transmitted into the air, it is public, available to anyone with proper equipment to listen to. Some laws say that the government is to treat those transmissions as if they were private. In one sense they are (they are legally protected as private and were presumably intended by the communicators to be only between them). In another sense (transmitted through the air) they are publicly available. If I tried to communicate privately with someone else by shouting through a megaphone, I could not complain if others heard me as well. If I used a high tech megaphone that encrypted my shouts and that required decrypting earphones on the other end, then I would have a better claim that successful seavesdroppers had invaded my privacy. I don't know if the telephone carriers use encryption.
Suppose that the government had a legitimate national security interest in detecting communication about certain topics. For example, suppose there were a certain biotoxin and the government wanted to data mine communications for any mention of the name of that biotoxin. Could the FISA court give a general permission for a broad based listening campaign, one not linked to any shred of probable cause that any specific communicators were involved in preparing a biological terror attack? I don't know enough about the law to answer that question, but I suspect that warrant seekers need to name particular parties in their surveillace requests. If there is a pressing need for a topic based rather than person based monitoring, does the 4th Amendment amount to "too bad, do without it"?
Regarding your point about privacy, the constitutional principle is "reasonable expectation of privacy". Phone calls are a difficult -- on the one hand, when I have a private conversation with you, I have a reasonable expectation of privacy. But at the same time, I have no way of ensuring that you're not recording the conversation or that you haven't rigged up your telephone to broadcast on the local radio where you are.
Notwithstanding these caveats, from a constitutional perspective, I still have a reasonable expectation of privacy from government intrusion without due process. And that's the point here, to my mind. Part of the deal that we struck with the federal government is that government can conduct searches, but that in exchange, the government must convince a neutral third party (a judge) that there is a probable cause that a crime has been committed such that a warrant should issue.
Whatever else you think, the fundamental question has to be, "where does the President derive the authority to suspend Constitutional protections". The Supreme Court, in Ex Parte Milligan, invalidated President Lincoln's suspension of habeas corpus, and although more recent cases have given presumptive validity to other invocations of martial law (or its derivatives), they have nevertheless preserved a role for judicial review. As the Court noted in Sterling v. Constantin (1932), '[i]t does not follow . . . that every sort of action the Governor may take, no matter how justified by the exigency or subversive of private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. . . . What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.''
The problem with permitting the suspension of the Fourth Amendment is, where do you stop? To put it to Republicans where they (traditionally) live, could the President suspend the Second Amendment and authorize the seizure of all guns? If not, what's the difference?
"a role for judicial review"
I think there definitely should be a role for judicial review of executive actions, even on matters of national security, even in wartime, even in moments of existential danger to the nation. My question is what sorts of actions should courts be in a position to approve. Under some interpretations of "due process" the only approvable actions are cases where "there is a probable cause that a crime has been committed". This puts both the executive and the judiciary in a solely retrospective role, only able to act after a crime has been committed. For ordinary individual crimes leaving the initiative to the criminal is a bearable price to pay. However, for truly massive group efforts, giving the enemy/criminal the first shot before government response may be too great a price. Countenancing pre-emptive rather than reactive action is one thing, leaving a role for the judicial approval is another. To make room for the first is not to rule out the second. I think we have used a semantic trick, focussing on "conspiricy" as a crime in its own right, to enable the government to take action in advance of overt criminal acts. This allows us to act prospectively while continuing to uphold the value that we only act retrospectively. If we think (as is likely) that Al Qaeda is conspiring against us, does that license us to surveille anyone who has contact with known or suspected Al Qaeda members? Maybe so, but I still wonder if we need to devise a content-based rather than an individual suspect-based rationale for judicially sanctioned information gathering.
I don't necessarily agree with your fundamental premise, namely that due process reviews are limited to instances in which there is probable cause to believe that a crime has been committed, and that therefore, the role of the judiciary is solely retrospective (I recognize it's not necessarily your view -- your post is careful to posit the hypothetical, but I am disputing that view, in any event). In fact, the concept of Fourth Amendment protections is that they are prospective; indeed, the requisite showing of probable cause can be either that a crime has been committed, or that a crime is likely to be committed. Your point about conspiracy is well taken, but reinforces my point, if you ask me, since a conspiracy is proven if (1) two or more people conspire to commit a crime; and (2) one of them takes any overt action in support of the conspiracy, even if the overt action is itself entirely legal. Consider, by way of example, a conspiracy to commit murder, in which the conspirators decide to commit the crime, and then one of them goes to a gun store to purchase the murder weapon. The act of purchasing the gun, though legal, establishes the conspiracy even though no shot has been fired; in essence, a crime has been committed at that point, and if the police learned of the conspiracy before anything else happened, they would not be obligated to wait until the shot is fired before they take action -- their knowledge of the conspiracy and the overt act (assuming it were properly corroborated, etc.) would be sufficient to establish probable cause for a warrant to issue.
Same thing with al Qaeda. If two terrorists discuss a proposed attack, and then take any overt action to carry out that attack, that's all the police need to take action -- they don't need to wait for the mushroom cloud. Thus, I don't buy the administration's reasoning on why it had to go around FISA -- first, they must have some basis for choosing one conversation over another to eavesdrop on, so why not share that with the FISA court and obtain a warrant; second, since the FISA statute specifically authorizes "retrospective" warrants (spy first, ask questions later), again, what was the structural impediment that required the President to authorize ignoring FISA (and the Fourth Amendment).
Remember, Al Capone was convicted of tax evasion...
Some lawyers on their blog try to "answer" the supposed retrospective FISA warrant. How well they make their case I'll leave to the reader:
http://powerlineblog.com/archives/012770.php#012770
The issue that I touched on when I said we need content based procedures rather than person based procedures has been on my mind. Nothing in the current controversy really bears on it, so I suppose its irrelevant; but it concerns me nevertheless. Allegdly there was an information gathering program called "echelon" (do a Google)during the 90's that monitored all overseas communications via automated equipment that searched for particular words and topics. If it did happen, can such an effort fit within a probable cause or reasonable suspicion based procedure? I don't think so. It looks at everybody and then focusses in on some of us due to the contents of our conversation. The target conversations searched for are (presumably) conversations about terrorist conspiricies and planned attacks. Do the overwhelming majority of us who are not engaged in planning or executing terrorist attacks need to get over the infringement of our previous immunity from being looked at by the government without a prior establishment of a basis, a particular reason for scrutinizing me, a particular person.
I think we already have such procedures. If you submit an order to a chemical supply company for certain ingredients that can be used as drug or explosive manufacture (as well as for other perfectly legitimate purposes), you will be visited by a government investigator wanting to examine your reasons for seeking those substances. If you want to board an airplane, you must submit to a search that can proceed quite far, and in a way that you as the individual traveller lose control of once you enter the security area. All this happens without any shred of a demonstration that any particular person has committed a crime or is likely to do so.
If we give up our rights to facilitate the apprehension of drug makers or airplane hijackers, isn't the horse out of the barn? If these ends justify that means, how much moreso must the end of avoiding mass terror attacks justify similar means. For airplane travel, we accept a broad-based warrantless and probable-cause-free search of just about everybody.
Suppose we (through our elected representatives and appointed judges) did explore proceeding with technology based more or less comprehensive monitoring of communications. To move down that road would not necessarily imply an absence of due process and independent oversight. As a first stab, I would want content-based data mining to be narrowly focussed on specific types of content. While there would have to be secrecy about precise methods, I think we could agree politically on certain ways of describing the target contents, and could devise procedures for checking on whether the data miners would going outside the lines. All of this could be justified withing the broad language of the first part of the 4th Amendment since it would be a "reasonable search" for vitally needed information. It would have no contact with the second, narrower clause because it would not describe particular persons, places, or things to be searched. Instead it would be a general dragnet search for types of things, types of communications. If there are reasonable searches for which 4th Amendment sorts of warrants are logically ruled out (no particular person, place or thing to be searched, does that mean these reasonable searches must proceed without any warrant? We must proceed, if we proceed at all, without that type of warrant, but maybe we can devise others. Suppose some government agents want to add a new category to the types of communication content that will be searched for. It would be in the spirit of the 4th Amendment to require that those government agents make out a case to an independent evaluator that there was a sufficient government interest to justify the addition of the category, and the standards of successfully making that case could draw heavily on existing probable cause doctrines.
Return to the original point of the article you cited, that "Open sources often equal or surpass classified information in monitoring and analyzing such pressing problems as terrorism, proliferation, and counterintelligence."
Suppose that this is true, and not just for those purposes, but generally. Imagine that if anyone wants to learn pretty much everything about someone else that they can do so by carefully assembling and analyzing publicly available information about their target. I don't know if this is now true, but with increasingly detailed record keeping and improving computer power, it may soon be. What then becomes of our traditional notions of privacy? Do we give up and just accept that anyone can know anything about anybody, or do we attempt somehow to put restrictions on the way that publicly available information is used? I believe that the CIA has taken the second strategy on occasion, declaring publications classified after they have already been publicly available for a while, but the more general question remains. I find myself in the "give up and accept it" camp. I've never been all that concerned about my own privacy (thinking that I'm so insignificant that no one would bother to poke into my little foibles) but if someone felt motivated for some reason to unearth true incidents and paint me in a very bad light he could. We might despise people who used such tactics, but I'm not sure if legal proscription is the best way to respond. If it became technologically impossible to maintain privacy, we would either politely refrain from delving as much as we could into other people's business, or false fronts would become impossible to maintain. I'm not sure if either outcome wouldn't be a good thing.
Is there a relevant difference to be drawn between what individuals might do to each other and what government might do to us the citizens? I don't know. The government is more powerful than any private individual, and maybe it should be subjected to more stringent restrictions; but it does seem odd to have a rule that prohibits government from using information that private individuals and corporations are free to use.
As a measure of how far we have come, I remember an incident in Solzhenetzn's novel, The First Circle. It was about a Soviet prison camp for high level technicians and scientists, with quite nice amenities compared to other camps. An inmate was pressured to work on an automatic camera, which would secretly take a picture every time a door was opened. The prisoner refused to engage in such work, even though it meant being transfered to a worse setting. Today, such a concern seems quaint, nothing to suffer over, and we are quite used to the idea of monitoring cameras scanning public places and the entrances of private (and government) buildings.
I can't comment on any of the legal issues that have been raised, but as a ham radio operator, I do know what the law is in regard to the interception and use of radio signals. You aren't allowed to do it, period. Unless, of course, you're a government entity with a properly obtained warrant. This isn't the same thing as wiretapping, though of course a wiretap may be involved if the radio transmission originated with a phone call. The only point I'm making is that no matter how public the airwaves may be, radio communications are not public property just because it's possible to overhear them.
Right on, Liz.
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