Judge Posner on Domestic Surveillance: No Threat To Civil Liberties
Richard Posner, a U.S. Circuit Court judge, writes in the Washington Post of the domestic intelligence gap and how NSA and the Pentagon are working to fill it (while simultaneously giving more credence to the theory that the recent stories concern data-mining technology):
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.
The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration’s political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects — a matter that was quickly exposed despite efforts at concealment.
Posner’s article is strong on justification (and I need no convincing on that score), but short on legality.
In other words, Posner explains to my satisfaction why such programs as the one behind Snoopgate are justified, but he provides no clue to whether they are actually legal. Still, worth a read as background on why the President would feel the need to leave the FISA system…
UPDATE 9:48 a.m.: John Schmidt, yet another in the seemingly endless parade of former Associate Attorneys General in the Clinton Administration to comment on the story, has this to say:
President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.
… Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.
But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.
Mark – couldn’t find the link, but read that the latest CNN/Gallup poll said that 62% of Americans believe that the Patriot Act…doesn’t go far enough.
And did you notice that Reid, after bragging that he “killed” the bill, now is saying he will quickly reauthorize it, albeit with a few changes? So much for their threat of a filibuster – if they go through with it, there goes their chances in ’06…
This country really does need a credible opposition to the GOP, but how can anyone take this stuff seriously, when all the threats turn out to be empty posturing in the end?
The article by John Schmitt, what John Hindraker at Powerline said, and what Andrew McCarthy and Mark Levin had to say about this issue is very heavy on the legal justifications of what the NSA did. They even cite Supreme Court cases. I hope that alleves your fears about the legality of what was done. I personally think the legal justifications are unimportant because if a president is going to be constrained simply by the current interpretation of the law instead of doing everything he possibly can, legal or not, to fufill his oath to defend this nation, I believe that he would be derelict in his duty. Someone who would have obeyed the law in this case would, in my humble opinion be derelict in their duty to the nation. Not chilling on this one, Mark. Not when it comes to the war. Not when it comes to political opportunists trying to hurt this nation so they can gain some political points at the President’s expense.
One might worry that Posner is famous for being either brazenly utilitarian or just plain amoral. It’s hard to take any moral argument from him too seriously.
Colin, I would just reiterate that I feel the President is fully justified, and I share your sentiments for the most part. However, we are a nation of laws and not men, as they say, so a legal framework, while it may not be the MOST important thing (that would be our security), is important….of course, from a philosophical standpoint, the security vs. liberty thing is very much open to debate, i.e., how far in each direction is permissable…
Ryan – OK, if Posner’s not your bag of tea, try some law professionals who are not GOP partisans by any means…
http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed
or –
http://althouse.blogspot.com/2005/12/about-those-wiretaps-and.html
The judge worked for the Clinton administration, and Ann Althouse is a legal columnist for Slate. This is ultimately going to the Supreme Court, too many well – regarded opinions on both sides of the issue are cropping up.
Whoops, sorry to post that first reference – already covered by Mark here. My apologies.
dmac, don’t let it happen again! Seriously, though, regarding your Reid anecdote – why, one might even think he was changing his positions on a vital program for our national security to reflect the latest polling! (Of course, he’s far, far too honorable for that, right?)…
Say what you want about Bush – he’s got the self-confidence to stick with an unpopular position, if he thinks it’s the right thing to do…
Mark, for one who presumably “hasn’t taken a firm stand” on this wiretapping story, you’re certainly presenting a lot of stuff from the folks who would either explain it away or minimize it, wouldn’t you say? There’s at least as many people, from both sides, saying some pretty different stuff than Kaus & Posner.
Well, I took a stand (at least an interim one) – I’m convinced that the actions were justified; I’m not convinced they were technically legal because they involved data-mining technologies that are not covered under FISA; therefore I fully expect hearings and further legal action, during which we may find out facts that would alter my perception.
But I do think I’ve presented both sides…I’m a partisan supporter of George Bush, but I’m not a Republican operative or a sycophantic ‘wingnut’ (at least, not in my own eyes), and I’ve tried to calmly consider the issue and highlight good articles from each viewpoint.
However, it shouldn’t be surprising, since I make no claim of objectivity, that I would highlight articles that I think bolster my own interpretation.
After all, I think Daily Kos, TPM, Eschaton, and Huff’n'Puff have got the other side covered pretty well…
I don’t think anyone could say that Kaus is anything but a moderate Liberal, but that pretty much describes most of my political leanings – except for the WOT.
And isn’t that pretty much what all these debates are really about? The Dem leadership really believes that this is just a criminal matter, while others believe that we’re actually in a war for our lives.