Saturday, December 17, 2005

Observations on the balancing of security and privacy in war 

On the past day, we have seen the renewal of the Patriot Act in its current form fail, and a new controversy explode over the revelation that the NSA has been dropping eaves domestically on the explicit direction of the Bush administration. I have not thought deeply enough about either of these issues to have a position that I could not be talked off of1, but I do have some observations about the politics of these two issues.

The Patriot Act is controversial and the domestic surveillance is politically explosive only because there has not been a second mass casualty attack inside the United States. Had there been another jihadi victory on American soil, is there any doubt that we would have enacted still tougher measures? From the vantage of that alternative universe, wouldn't all this controversy seem quaint, if not naive? Oh, sure, there would still be ardent civil libertarians who would demand the full battery of protections even if bombs were going off in American cities every day. I'm talking about the ordinary, safety-conscious mildly authoritarian suburbanite. You know, soccer moms.

If you believe as I do that the politics of these controversies would be quite different had there been other successful mass casualty attacks "over here" since September 11, then you are forced to wonder why we have had no attacks. Is it because al Qaeda has not attempted an attack, notwithstanding its repeated threats? Or is it that our government has disrupted al Qaeda's planning or even interdicted particular jihadis before they could carry out their mission? If you are inclined to believe that al Qaeda is toothless and that American homeland security is a joke, of course you are comfortable letting the Patriot Act expire and waxing sanctimonious about the NSA's violation of our somebody's privacy.

If, however, you believe that the vicious enemy who attacked the United States in Somalia, Kenya, Tanzania, Yemen, Saudi Arabia, New York and Washington retains the capacity to kill in large numbers and the will to do so, don't you have to wonder whether it was the law enforcement initiatives enacted four years ago, including the Patriot Act and apparently including new domestic spying by the NSA, that bought us four years of peace at home? If so, does it then follow that it is the very success of the Patriot Act and the NSA's surveillance (and other domestic security measures, whether or not widely understood) that has brought about the political conditions that will lead to their reversal?

Finally, if you believe that al Qaeda remains a threat but that the Patriot Act and the NSA's domestic surveillance have not bought us the respite from homeland attacks that we have enjoyed in the last four years, what has? There are, I submit, three alternatives. First, you might argue that al Qaeda has decided to refrain from domestic attacks for a bit, perhaps until after the Bush administration is out of office. If you believe that, consider whether you want to elect a new president in 2008 who is any less "scary". Second, you might argue that conventional American law enforcement was all that was ever necessary to bring about the peace of the last four years. That would be the same conventional law enforcement that failed to stop Mohamed Atta?

Third, you might argue that America's aggressive foreign policy has forced al Qaeda to direct its resources elsewhere, freeing us up to enjoy greater civil liberties at home. If I were a Democrat with presidential ambitions in 2008, and if I thought that the anti-war wing of the party was going to lead the Donks off a cliff just as it did in 1972, 1980 and 2004, I would make precisely this point. As a political argument, at least, it is almost impossible to refute.

So, those of you (us?) who oppose the Patriot Act and think that the NSA should stick to spying on ferners, which is it?

1. I tend to think that the Patriot Act should be more precisely targeted toward the jihad and less applicable to drug dealers and other garden-variety criminals. I also tend to think that we should have a mechanism for third party review -- probably a warrant -- before the government listens in on American citizens and opens their mail. I also tend to think that the nature of this war is such that we should afford actual citizens greater protection from surveillance than non-citizens. But, I confess, I am not confident in my ability to defend these predilections.


By Blogger Cassandra, at Sat Dec 17, 07:43:00 AM:

Before I even read this, you must be psychic. I was just ranting in the comments section on this very topic. I'm so glad you took it on.  

By Blogger sirius_sir, at Sat Dec 17, 10:52:00 AM:

I agree on the Patriot Act. It should be more closely targeted to concentrate on terrorists--jihadists or otherwise. (I'm not sure we need necessarily make any distinction in this regard.) I think most of the opposition to the act has arisen because of fears that it will become an octopus reaching its tentacles every which way.

The domestic surveillance thing is problematical for the same reason. It would be easy for it to acquire a Big Brother aspect and be abused. But on the other hand what is intrinsically wrong with tracking both sides of a conversation where one side is coming from a known terrorist or terrorist affiliate? Or checking through contact information taken from a known terrorist's computer? Third party review should probably be SOP (Isn't that what obtaining a warrant is all about?) but I would suggest that in some cases prior review may not be available in time to gain full use of the information and/or stop an attack. A case review should probably always be conducted, if not before then after surveillance activity in order to show the reason for any action taken and to safeguard against abuse.  

By Blogger The Apologist, at Sat Dec 17, 02:21:00 PM:

Question: If there is another attack in our borders can the families of victims sue the NYTimes and the Wash.Po. for undermining NSA and CIA operations? They tipped Al-Qaeda to our monitoring of Bin Ladens cell-phone calls, compromised this latest NSA op., compromised CIA prisons and prisoner transport, and a whole list of other operations which treat the terror fight more like war and less like crime. The media op. has consistently been about forcing the GWOT into court where the Salafists have an advantage (see Walid Phares's book Future Jihad and the Sami al Arian trial outcome). If Americans are killed in an attack and NYT/WashPo publishing security breaches can be shown to have contributed to "opportunity" could they be sued for damages?  

By Anonymous Anonymous, at Sat Dec 17, 03:41:00 PM:

Oh, please. As if the terrorists didn't know that we monitor their phonecalls. The only thing the terrorists learned from the NYT report is that the Administration is doing it without oversight, or warrants. The NSA's clandestine behavior against American citizens is far more damaging to our efforts to promote freedom and democracy in the eyes of enemies than reading--again--that we monitor phoncalls.

I'll ask the same question: What's wrong with getting a warrant? How many more powers will the Executive Branch usurp in the name of GWOT?  

By Anonymous Anonymous, at Sat Dec 17, 04:13:00 PM:

Dear Mr. TigerHawk:

We have followed up on this post on our blog with

Does this mean the war is over?.

With no further Al Qaeda attacks in the U.S. and complacency growing, the perception also grows that the War on Terror is over, or never really occurred. American society is in a long-term "action-reaction cycle" with Al Qaeda, and the American liberty versus security balance is adjusting with it.

The cycle is now swinging to the liberty side of the spectrum. Should this continue, it bodes ill for hawkish presidential candidates in 2008.

Will the world be safe enough for a President Feingold in 2008?


By Blogger Cassandra, at Sat Dec 17, 05:00:00 PM:

I can't say a whole lot here, but your question about warrants implies that you don't really understand either the purpose or the nature of the monitoring done by the NSA. Suffice it to say that they're really not interested in listening to you tell your Aunt Edna about your favorite biscuit recipe.

Trust me. The sheer volume of traffic involved prohibits them from tuning into the enticing roast beef recipe or the description of that encounter with the new secretary from the office down the hall. They're really not interested.  

By Anonymous Anonymous, at Sun Dec 18, 03:04:00 AM:

Anon -- Warrants cannot be gotten before hand because by statute FISA requires an enormous amount of paperwork. Time is about six months just to get to court. Congress has to be notified, there are internal procedures (codified by FISA statute) that must be followed before a warrant can be sent to a FISA judge.

You are OK with taking six months (by then the numbers are useless) to monitor whoever was calling a known terrorist number, or vice-versa?

Dems are useless, fawning over Tookie while being unable to name a single victim. That writ large is the problem with the Liberals in this nation: identifying with and doing everything in their power to enable his evil actions.

This isn't a sweep of all phones. It's limited to people calling identified terrorist numbers overseas or identified terrorists overseas calling in. Sounds about right to me and that's a debate Bush will win and Dems lose every time.  

By Blogger Dawnfire82, at Sun Dec 18, 01:58:00 PM:

"The NSA's clandestine behavior against American citizens is far more damaging to our efforts to promote freedom and democracy in the eyes of enemies than reading--again--that we monitor phoncalls."

Maybe that's why it was clandestine? The press has done more to hurt American national security v. Al-Qaeda as far as information goes than Al-Qaeda could have ever hoped to accomplish on their own. Al-Qaeda penetration of the American intel community is virtually 0, though they've tried several times.

But who needs spies when your enemy's press is itching to publish sensitive information at any time, and is fed by malcontents in the same government? (i.e. politically motivated leaks)

As an aside, I would love to see a Congressmen sent to prison for giving up classified information.  

By Anonymous Anonymous, at Sun Dec 18, 03:03:00 PM:

Anon, you might want to read that statute again. 50 USC section 1802 specifically provides for warrants to be issued under emergency conditions--hours not months is SOP--and if that's not expedient enough for you, FISA allows wiretapping for up to 72 hours before a court order needs to be signed. So you can scratch exigency as grounds for not following the law. Next excuse?

I don't give a hoot whether the NSA wants to listen to T/C with my Pakistani co-worker, or eavesdrop on Quakers or decipher chatter from the next shoe-bomber, as long as it has followed the laws in place.

We are a nation of laws, and neither the President nor members of Congress are above the rule of law. Period. If FISA wasn't "ghetting it done" for Bush & Co, the administration should have sought to have it amended, not ignored. We cannot allow one branch of government to be judge of its own powers.

For more in depth analysis of FISA provisions, I suggest you read this  

By Blogger bj, at Sun Dec 18, 04:09:00 PM:

It's Title 50, 36 USC sec. 1805

(f) Emergency orders Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that— (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.  

By Blogger Cardinalpark, at Mon Dec 19, 10:27:00 AM:

Generally, I think the Patriot Act has worked remarkably well. Haven't heard many reports of abuses. No subsequent mass attack. Afew busts of AQ network elements in the US. Generally, if judged by results, pretty good balance.

Historical comparisons make the Patriot Act look pretty weak - Lincoln's suspesion of habeus corpus, the Alien and Sedition act during Jefferson's term, and of course internment during WWII qualify as draconian suspension of civil liberties in times of war.

The Patriot Act is nothing like those. So I tend to like judging by results...and they look pretty good for now.  

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