Pace Mark, Obama is in a deep hole over FISA. It’s the third issue crisis in his candidacy, after health care mandates and the Reverend Wright. He overcame the first two by sticking to his guns; he has got into this one by a real, not a manufactured flip-flop. Moral: don’t do it again. But the FISA one is still running. Obama’s online answer to his supporters is thin and won’ t I think settle the matter. What can he do? Hoping the fuss will go away won’t work. Voting either for or against FISA’s Mother would be equally damaging.
The only exit is the fuite en avant: proposing a shiny new and principled policy on privacy and surveillance, with new legislation after full inquiries into Bush’s abuses. Self-interested bid: please pay at least token respect to the idea that even foreigners have some privacy rights (Universal Declaration on Human Rights, article 12, etc. etc.) even if your actual plan is to violate them on the least provocation.
One line worth exploring is why exactly the Bush Administration refused to live within FISA, an executive-friendly piece of legislation, and amended several times to make it even more so.
We can discount the technical issues over location – American-to-foreigner communications intercepted abroad, and foreigner-to-foreigner ones intercepted in the United States: Congress is delighted to adopt patches for this sort of bug. That leaves only two explanations:
* The madness of King George. The White House, inspired by Cheney and Addington, is lawless out of monarchist principle: the absence of warrants for surveillance was the whole point. I could believe this except that the surveillance has to be instigated by far less ideological career spooks in the FBI, CIA and above all the NSA. It’s not like torture where the captives were known to the White House which then bullied the bureaucrats into abusing them. On surveillance the White House would have had no idea whom or how to bug without the experts. If the NSA were happy with FISA, how could the illegality have started? So there must be an operational explanation.
* The spooks wanted to do something so extreme that no FISA court however tame could possibly have approved. That can only be a large-scale trawling or data mining operation, involving millions of intercepts.(See update for references.)
The data mining idea isn’t crazy. John Doe now generates masses of electronic communications data every day, in at least five categories: voice phone calls; cellphone locations; emails; browsing histories; and web searches. (Yes, I know about FTP, faxes, and ham radio but they are minority pursuits.) It’s technically possible SFIK to analyse such data automatically to pick up alleged indicators of danger. If I spend my time on the Web searching for and consulting sites with the keywords jihad, martyrdom, anthrax, cryptography, and metro, then perhaps my lifestyle bears a second look.
Data mining is surely technically possible but we don’t know whether it works. How stupid are jihadis? Richard Reid, very; Mohammed Atta, not at all. There are three possibilities for mass surveillance and data mining:
a. It works well enough to reveal usable intelligence at reasonable cost.
b. It yields a little intelligence but is only marginally worthwhile.
c. It generates massive amounts of noise, diverts a lot of scarce analytical resources and is on balance counter-productive.
Before getting into a deep political argument over principle, the American public should know which of these is true. Unsupported public assertions by Bush spokesmen have at this point no probative value, and if I were Pelosi, Reid or Obama I wouldn’t rely on their confidential briefings either. But Bush’s illegal programme has surely been on a big enough scale to give us the answer. That’s proposal No 1 to Obama:
Set up a blue-ribbon independent commission to report to Congress and the people on the Bush programme and its results.
If it turns out to have been a pointless technofascist fantasy, or a ho-hum “worthwhile Fort Meade initiative”, there’s no need for a debate.
Whom do you target with your spiffy spybots? Poindexter‘s answer was “everybody”. But you could have a semi-targeted approach looking at a tree of the contacts of known jihadis and their contacts. In a networked world, it is plausibly claimed that a random person today is only six degrees of separation in acquaintance from anybody else. If each person knows 100 others, then it only takes 5 more steps to exceed the world’s population (1005 = 10bn). More realistic network models take account of a few multipliers – journalists, cops, priests, academics, politicians – who know a lot more, and a mass of stay-at-homes. Still, the crude model helps give the orders of magnitude.
If, by analogy to the affectionate Erdős number of mathematicians, the jihadi degree of Osama bin Laden is defined as 0, and of al-Qaeda activists 1, your and my jihadi degree is probably 4 or 5. My guess is that the illegal data mining operation targets about degree 3, which would be of of the order of a million people worldwide, and a hundred thousand in the USA. I stress guess – I don’t know, and nor does Obama. It would be important to find out. That’s my proposal No 2 to him:
Reveal the numbers targeted by Bush’s surveillance.
There may be a case for mass surveillance. I can imagine a legal régime that allows the government to run automated surveillance of anybody’s communications, rather the way in which Google’s crawler bots scan the Web every day to update the link matrix and allow the page ranks to be recalculated. A warrant would be needed to go any further: for human agents to read the communications of individuals the bots found suspicious. The wholesale automated records would be destroyed after a short time. This isn’t the privacy régime Americans think they are entitled to, but it would be better than the one they actually have.
I’m not an absolutist here. Warrantless surveillance isn’t like torture, which is just stupid and wrong: there really is a tradeoff between privacy and intelligence. Citizens just don’t have the information to judge where to draw it. But it’s their call: the decision must be taken away from a lawless executive and returned to the people.
BTW, Obama should sack a legal adviser on FISA who doesn’t have pat answers to questions by the highly visible activist Glenn Greenwald, a lawyer who has blogged a small book on FISA over the last six months.
Where does HR6304 (“FISA’s Mother”) allow mass surveillance and data mining?
The text is here; spectacularly unreadable, in itself a vice for a law affecting fundamental liberties. The critical clause is 702 (g) 4:
Nothing in title I shall be construed to require an application for a court order under such title for an acquisition that is targeted in accordance with this section at a person reasonably believed to be located outside the United States.
Surveillance progammes will therefore be allowed to target large numbers of communications between individuals outside the United States and individuals inside them, as long as the latter are not defined as the “targets”. (Just how hard is it for the spooks to reverse engineer this?) As ACLU says:
The likely consequence is that U.S. persons communicating with those living, working or traveling abroad will have their communications swept up into the dragnet of communications obtained under non-individualized program warrants.
The FISA court gets to review that the programmes make efforts to minimise the impact on US residents. It doesn’t get to review the status and number of the targets abroad, though there are additional requirements if these are Americans.
HR 6304’s broad programme authorisations, moderated only by general court reviews under vague criteria of “minimisation”, are not anything like the judicial warrants for cause required by the Bill of Rights, and deserve the name of “warrantless surveillance”. And HR 6304 establishes no effective legal limitations on their scale.
QED I think.
HTs Glenn Greenwald of course.