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NSA Surveillance: What We Should All Agree On
I’ve received several requests to respond to Tom Meyer’s very thoughtful post about how national security hawks should respond to criticisms of the NSA surveillance program. The piece is mostly about political argument and the art of rhetoric — I’m not quite sure from the post what Tom himself thinks is the best policy — so I’ll have to respond broadly.
What makes this issue difficult is that the war is covert, against a network of non-state fighters who disguise their communications and movements as innocent, but have great destructive power aimed at civilians. We are pursuing the wartime goal of stopping enemy attacks before they happen.
Perhaps we can all agree on three facts.
First, we are trying to find a needle in a haystack — those few messages buried in the mass of innocent communications that will lead us to a terrorist conspiracy.
Second, the criminal law approach — a warrant first, a search second — does not work in this situation (as we discovered on 9/11), because we would not have probable cause to search an individual target, whose identity we probably do not know and who has not, as of yet, done anything criminal.
Third, the magnitude of destruction from a terrorist attack is far greater than a criminal enterprise.
With those circumstances in mind, I do not see what practical, effective alternative there is to some kind of broad electronic surveillance program. One can argue about the details, in terms of how many NSA employees should run it, how much congressional and judicial oversight there should be, etc. But if we are going to continue to prevent terrorist attacks on the U.S. homeland, the U.S. will need to be able to sort through the mass of innocent communications to find signals that will allow it to detect the attack before it happens.
If one accepts the three stipulations above, I simply don’t see an effective alternative.
Published in General
The alternative is to put liberty as a higher priority than security. The debate is not about how best to enact such a program but whether or not one should exist in a free society with a government that serves the citizenry rather than vice versa.
We are not quite going to agree on this. 911 was the extreme aberration in terms of the effectiveness of such attacks. Furthermore, that vulnerability was addressed by locking the cockpit door of commercial airliners, and the general awareness now that will cause the passengers to resist if any small group of people ever attempted to hijack a plane.
Most terrorist attacks cause violence on par with criminal enterprises, except they occur less frequently.
I’m not arguing that they should be treated like criminal investigations, as I don’t believe that. But arguments that treat every day like a potential 911 that is only prevented by sacrificing nearly all privacy in the name of security, are not going to resonate with me.
It would help assuage the concerns of people like me and Tom if those who advocate for this NSA program wouldn’t so readily argue that such data should then be held for use in non terrorist criminal investigations.
Can we agree on that?
“Third, the magnitude of destruction from a terrorist attack is far greater than a criminal enterprise.”
As a matter of fact, this is not correct. If you exclude the 9/11 attack, this is not even close to accurate.
The number of murders in 2012 in the US was over 14,000. That’s higher than the number of US victims of terrorist attacks going back quite a number of decades.
And yet we don’t toss the Constitution out the window because of those statistics.
That seems to me to be an argument for a smaller haystack. To build an oversized haystack and then search it, in hopes that their might, might, might be a needle, of a size and shape that we don’t know of, seems, at best, to be a waste of resources.
That to build that haystack we need to burn the 4th Amendment is intolerable.
Agreed, great point. I also think the War on Terror is a war, and needs to be fought like one. But if we managed to defeat the Nazis and the Soviets without resorting to a Stasi-style surveillance state, I think we can manage Al-Qaeda.
We need to keep the risk in perspective.
To even begin to justify that second one requires the third one. So let me start with that:
Just over a year ago we had a “terrorist attack” at the Boston Marathon. Three people were killed.
We’ve had one big one. It was 13 years ago. Since then, no, John, the magnitude is not bigger. If you knock down two of the world’s tallest buildings and do it in Manhattan, yeah. But such an event is literally unique.
As for the criminal warrant not working…
Can’t you made the same argument about any murder (or any other crime)? It hasn’t happened yet, so no probably cause to search, no warrant, no stopping the murderer.
You know what? I am 100% okay with that. Because when the alternative is tried: no warrant needed, you end up with tyranny. So I’m willing to accept a few murders, a few arsons, a few rapes, and yeah, a few terrorist attacks, because that’s the cost of liberty.
I’ll prefer it to tyranny.
(So I guess we can’t all agree.)
“First, we are trying to find a needle in a haystack — those few messages buried in the mass of innocent communications that will lead us to a terrorist conspiracy.”
One other point: the NSA surveillance doesn’t even seem to be a particularly effective tool.
The one real terrorist attack of the last few years got past it, even though we’d been notified of the participants.
I will agree that warfare is different than law enforcement, and is held to a different standard,
and that the a declaration of war (authorization to use military force being a long way to say declaration of war), is the “Due process of law” to conduct warfare against domestic and foreign enemies to include spying on them, killing them which includes flying death robots raining missiles upon them. I even get that somebody has to make the decision on who the enemy is to rain death down upon them.
and that all of these conditions are presently true.
I do not agree that this is license to hoover up all the meta-data in the world to search for the information you don’t know that you need. That is to declare literally every human being in the world an enemy combatant. Which is both insane and insulting.
A system with any kind of application of discretion would -at least- be defensible.
I’d second what Frank Soto states and add that several of the failures of 9/11 stemmed from that infamous ‘wall’ that was built up during the Clinton administration, can’t recall the name of the lady responsible (Zoey Baird?).
I’d argue there is a difference between the CIA, NSA, the FBI and DOD sharing information and the blanket surveillance that all Americans are being subject to.
So between 9/11 we had the Patriot Act and now the enhanced surveillance of the entire country and the Boston Marathon or Underwear Bomber attacks, where we were warned, names given etc., yet still they infiltrated our defenses.
I’d argue that those dots aren’t connected in those cases because billions of other dots had been needlessly added to the page.
Why were dots not connected prior to the Boston Marathon bombing…shoddy terrorist surveillance? Why would that have been given the resources and skills of the FBI and NSA?
Maybe some investigative agencies are ignoring some haystacks altogether in order to be politically correct.
Was the Boston Marathon bombing an NSA failure? An exclusive failure of the FBI? I thought these agencies talk to one another, yes? What good is gathering all this information if the suspect behavior of the Tsarnaev brothers was so apparent prior to the bombing? Didn’t the FBI visit with the Tsarnaevs’ mother and question her about her sons’ activities? Was there no actionable intelligence? If the expectation that Americans are supposed to have is that massive data gathering will protect them even if it occasionally violates their privacy, then what happened in Boston and who was held to account for the failure?
How many warning signs were there prior to the first Ft. Hood shooting? Did the Army not know about Nidal Hasan’s jihadist sympathies? Where was the NSA in the run up before the shootings?
Embassy bombings in Nairobi and Dar es Salaam, August 1998 killed 301 and injured more than 5,000.
Bali nightclub bombing, Oct 2002 killed 180.
Madrid train bombings, March 2004 killed 190 and injured more than 1,400.
London train bombings, July 2005 killed 52 and injured 700+.
Prof. Yoo’s point about the magnitude of damage caused by a terror attack compared to criminal behavior is valid.
Fred, I’m curious how you would make the haystack smaller? If we discover a phone used by a terrorist in Yemen and that phone has called US numbers, how do you propose we determine what other numbers have called or been called by those US phones unless we had collected the info beforehand?
Who is arguing you need to sacrifice nearly all of your privacy? Who is arguing this data should be used for non-terror criminal investigations?
Engaging arguments actually made is much more useful than knocking down strawmen.
You clearly know very little about the Stasi or the measures we took as a nation during WWII.
[Redacted for CoC]
Can you cite criminal acts whitch caused damage and casualties comparable to the terror attacks I cited?
While you are at it, why don’t you try to be specific concerning our ‘Stasi-like’ tactics? Explain how what we are doing today compares to WWII’a Office of Censorship or the internment of Japanese Americans??
Well, abiding by the 4th Amendment and getting, you know, a warrant and stuff might make that haystack smaller.
If my answer comes off as flippant, it’s not meant to be. Terrorism (however its defined, and isn’t actually defined often) isn’t going to end the United States. It’s not so substantial as to be an existential threat to the United States.
So why are we destroying the Constitution, our protection against our government, to fight something?
A cop can search a guy for weapons on the grounds of “officer safety.” Who knows, he could have a sawed off shotgun down the front of his pants. But that power, to search for “officer safety” is rarely used for that. What cops find isn’t weapons, but small amounts of drugs.
Police have the ghastly power to conduct “traffic safety” checkpoints. The idea is to catch drunk drivers. I tend to see them on the first Monday of a new month. They’re checking for expired inspections and registrations.
It’s not a strawman. History, my friend, tells us that when governments get a power for one purpose, they use it for whatever they need to. So today they get some power to “fight terrorism.” How soon before its used to fight the War on Drugs? How soon before its turned toward the twin scourges of truancy and teen pregnancy?
We like limits here.
So what’s the limiting principle on these enormous powers?
When do they expire?
What checks are there on these powers?
Who decides on these things?
I know, I know. We can’t announce or discuss these limits, because then “the terrorists” know what those limits are and can exploit them.
Well, tough [crap]. That’s not how this limited constitutional government thing works. That’s not how this rule of law thing works. I don’t give a [fig] if Johnny Jihad finds out. I want to know, because that’s how these things work.
In the last century, governments on this planet murdered hundreds of millions of people. That’s what governments do when they’re unchecked. We have transparency because that’s how we prevent abuses by government.
The NSA is abiding by the 4th Amendment. The data it collects is not yours, it does not and never has belonged to you. It does not constitute your papers or effects. Even given the ‘living Constitution’ expectation of privacy standard the NSA collection is sound. You have no reasonable expectation of privacy relative to information you willingly provide to a third party for that party’s use.
I can’t help but notice you failed to answer my question concerning the terrorist’s phone.
Now you are building a whole family of strawmen… This discussion concerns NSA operations in a time of war not local police procedures.
War time powers end when they always have, when the war is over. The checks on these powers are the people and their elected representatives. Despite your assertion otherwise, that is exactly how it is supposed to work in this constitutional republic.
Yes. I’m sure that when James Madison drafted the 4th Amendment and when the Supreme Court ruled 35 years ago on a case about pen registers, that they intended the federal government to have the power to scoop up metadata.
If you reread that entire comment in context, what I was pointing out was a fact that you either missed or chose to ignore: That governments granted broad powers to fight a specific thing use those powers wherever and whenever they’re convenient.
So today the NSA gets these powers. Tomorrow the FBI gets them. Soon my local cops are able to use this stuff for petty drug crimes and parking tickets. One these powers are granted, once courts legitimize them, governments do what governments always do: take more and more power.
That’s not a strawman. It’s something you should be very concerned about.
Except that governments don’t relinquish these powers. Did the federal government relinquish the power of conscription forever once the Civil War was over? Did it relinquish the income tax once the war was over?
Did the government disarm after World War 2? Or did it build a gigantic bloated military complex?
But those are specific wars with specific battle fields. They had beginnings and ends.
What of the War on Drugs? When do those wartime powers end?
What about the War on Poverty? When do those wartime powers end?
That’s the convenient thing about the War on Terror if you’re a statist. Since it can never end, the government never has to give up the power. Since “terror” isn’t well defined, it can be used for anything.
Yeah, and the threat of actually using our military power is miniscule. Nuclear weapons mean nothing if there is never a reason we would ever employ one. Massive conventional military power is of no value if we don’t use it against our enemies.
If we would ever use our military to actually punish the nations supporting these terrorists, and wiping out the powers in those nations and making the people in those nations suffer for allowing themselves to be ruled by such governments, we would end terror right then and there.
Instead we run roughshod over our own civil rights and wee in our pants that someone might attack us again and we reward the peoples of those nations with billions of dollars of our money. We can never stop all attacks from a foe determined to attack. Yoo’s argument guarantees a perpetual and ever escalating oppression of our own people.
We should make others pay who would interrupt our peaceful enjoyment of our freedoms.
Are you under the impression Madison was unable to distinguish ‘their … papers and effects’ and ‘papers and effects pertaining to them’? Is your objection is not collecting information specific to you without a warrant but rather your information is part of a larger collection effort that will only be attributable to you with another court order?
Except as a matter of history, you are wrong. Conscription did end after the Civil War and was not reinstated until half a century later for WWI. It ended again after WWII and was not reinstated until WWII and does not exist now.
The Civil War era income tax did end and was not reimposed until the 16th Amendment was ratified.
The war time powers Lincoln, Wilson, and FDR exercised virtually all lapsed after the wars. Habeus corpus was reinstated, war price controls ended, rationing ended, mail stopped being censored, Japanese Americans were released from internment, …
No war comes with an expiration date. This war will end when we either win or lose.
The war on drugs is a marketing slogan, not a war. Any powers related to it are statutory not Article II wartime powers of the executive.
Except as a matter of history, you are wrong. Conscription did end after the Civil War and was not reinstated until half a century later for WWI.
Except that from then on, that temporary war power was claimed forever after by the government. And then it stopped being a wartime measure and we got peacetime drafts.
Extrapolate that as you will.