Monday, January 22, 2007
i was calling your name, but the noise was too loud:
Patrick Radden Keefe has a great piece in Slate about the ambiguity of the "Terrorist Surveillance Program" in its new FISA-friendly incarnation. The trouble is that not many people outside the White House, the NSA and the Justice Department (and the D/CIA's office) understand how the program actually works. But the best guess is that the subject of surveillance is several degrees of separation removed from a known al-Qaeda operative or affiliate -- which is why the program's architects scrapped the probable-cause standard, and hence the FISA court, to begin surveillance. Keefe worries about a back-door revision of FISA that would make the FISA Court much more of a rubber-stamp:

If this new judicial oversight doesn't alter the program, such oversight must entail a novel reading of the FISA statute. In the background briefing, one of the Justice Department officials said, tellingly, that in securing a compromise that allows the program to continue under the wiretapping law, administration lawyers had drawn on "our own approach to the statute." The officials said several times that the solution they had arrived at was "innovative," and one wonders whether they managed to innovate their way around one of the keystones of the FISA system—the requirement that warrants be issued on a particularized basis.

The objection to this scenario is that a FISA Court judge presumably wouldn't allow the Justice Department to unilaterally rewrite the statute. But Keefe points out something I didn't know, and should have: "the Jan. 10 orders had not come from the entire panel, or even from the FISA court's presiding judge, Colleen Kollar-Kotelly, but from one particular judge who happened to be on duty that day. These orders appear to be unappealable, and no one outside the FISA court and the administration knows what they say."

Stripping away the legal and constitutional questions, there's a hard, security-policy core here -- one that basically prompts the legal and constitutional questions:
How solid a connection to a known Al Qaeda member is required to trigger surveillance? How solid a connection should be required?
By rejecting probable cause and FISA, the Bush administration conceded not only that it found the current restrictions unacceptable, but that it found the prospect of setting legal boundaries for terrorism surveillance unacceptable. That's the prerogative of the authoritarian. Yet it should be said that it's, at the very least, problematic to set hard-and-fast boundaries beyond which someone should be ineligible for court-approved surveillance, since such a thing could telegraph to al-Qaeda how to escape surveillance. (A caveat: to a great degree, this turns on the question of whether an al-Qaeda operative would be inclined to share information with a person who represents the Nth-plus-one degree of separation. Al-Qaeda's habit of compartmentalizing information suggests that setting such boundaries may not be as problematic as I'm fearing. But if there's some imaginative way al-Qaeda might be able to turn people into unwitting conveyors of information, then it remains possible.) Similarly undesirable: it may simply be that we'll have to wait until the next administration to see whether someone who isn't Bush believes that there's a compelling need to take the radical step of jettisoning the probable-cause standard.

--Spencer Ackerman
Sorry for posting this here, but I think you ought to know about it. The New Yorker printed Nicholas Lemann piece that is criminally naive. He writes:

"President Bush is often said to have misled the country into war in Iraq. But it’s equally true—and more illuminating of how the White House thinks and works—that the Administration misled itself into war."

Based on your work, I'd say this is a phenomenal crock of shit. He also writes:

"The problem with the Bush Administration is not that it is uninterested in hard facts. The problem is the way in which the Administration goes about marshalling those facts."

When did Tina Brown come back?
Blogger TS | 8:53 AM

How solid a connection should be required?

Exactly, I'm willing to entertain the argument that in certain cases "probable cause" might be too demanding a standard. But that entails a discussion of balancing priorities between security and privacy, which also entails outlining the costs and benefits of any program with regards to those priorities. It's within the realm of possibility that the TSP is a good and useful program (though, given the parties involved and the application of the Davie theorem that good ideas don't need lies to sell, I'm doubtful) that in itself is not enough. The 'process' exists to make reasonably sure that it is in fact (or at least in prospect) a good and useful program before it is implemented.
Blogger Pooh | 11:45 AM