FISA Revisited

July 21st, 2008 Posted in Politics

Vox Libertas has published a very interesting analysis at Daily Kos that makes a case in favor of the new FISA law, and his post includes some suggested revisions to my analysis and charts. (FYI, I welcome suggested revisions from those who see errors, or an improved version of the graphic from anyone with more skills in that area; and I can send the original flowchart file to anyone who requests it).

Here’s Libertas’ own summary of the benefits of the new law. It:

• brings all foreign surveillance under this law
• aligns the law with the jurisdiction and protections of the Constitution
• requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
• makes the AG and NSA jointly responsible
• requires review
• makes explicit the criminal nature of stepping outside this law or the Constitution
• increases senate oversight
• makes explicit the grounds for criminal proceedings

I’m not sure I understand this suggested description of the new law:

1. If any US person is involved or the communications is domestic, a FISA warrant is needed
2. If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
3. Otherwise, no warrant is needed when no US person is involved.

For (1) and (2), it should read "If any US person is the target"; a US person may be involved, if there is a foreign target. For (2), as far as I know international phone calls are now routed largely through fiber optic cables, so the new law dramatically affects both email and phone communications. And I think this is incorrect: "If no foreign agents are involved, surveillance requires an ordinary warrant." In fact, the revisions to FISA essentially create a loophole to this rule when it comes to wire and cable (it already existed for radio); a foreign agent need not be the target as long as the target is not a US person and is located outside the United States.

As Libertas notes, evaluating the new law really comes down to evaluating some very complex issues (that I don’t fully understand):

1. The effectiveness of "minimization procedures"
2. The relative benefit of broader protections for US Persons
3. The effectiveness of prescribed oversight (including certification procedures)

And it’s the complexity of these issues that makes the arguments of Glenn Greenwald and others so difficult to evaluate (and so ineffective at producing outrage among many people).

But I think if there’s one fairly compelling focus for understanding the dangers of the new law, it’s the creation of a new category of warrant-less wiretapping of communications that may in fact involve US Persons (as long as they’re not officially targets). And then there’s the fact that no specific warrant is required, with no probably cause of a crime or the involvement of a foreign agent, for very broadly defined targets involving no specification of a phone number or email address, and involving the cooperation of telecoms. It has indiscriminate mass acquisition written all over it.

On the other hand, I have to admit that despite my fervency about civil liberties and the fourth amendment, like Andrew Sullivan I just can’t get as exercised about this as I do about, say, torture. I suppose that lack of passion is the result of the following beliefs, sins that I admit reluctantly:

1. Technically (and as Libertas points out) I know that none of my communications can be kept private unless they’re encrypted, and I always assume electronic conversations are public
2. The original FISA law already had very broad exceptions, and where warrants where required the FISA court rarely denied them
3. I suffer from the widespread "I don’t have anything to hide" syndrome
4. I’m pessimistic about the extent to which laws really curtail the excesses of the powerful — the intentions and values of all participants in the legal system are critical

I know that Glenn Greenwald would be rightly outraged by these sins, especially (4). After all, the idea that we should rely on the good will of leaders and "trust them" is extremely corrosive to a democracy. And that’s why Glenn is so offended by Obama’s reassurance that he won’t abuse the sweeping new powers the law provides. Anyone in power, including Obama, is subject to its corrupting influence — and that’s why we need good laws.

On the other hand, the entire system of laws and their execution depends on the good will of participants in the system. Corporations regularly lawyer their way out of regulations, for instance, and laws have done little to curtail Bush from committing multiple war crimes and felonies. If citizens, congress, and the attorney general don’t care, then the law has little force. And I’ve seen too many court shows and DNA exculpations to believe that if I were wrongfully accused of a crime, I’d have a good chance of avoiding conviction. And I know that if a district attorney wanted to, he could drastically disrupt or ruin my life even without achieving a conviction — in that Ken Starr disrupted the lives of so many Clinton associates.

And what force would a legal prohibition of something — say, murder — have if no one really believed in it? It would go the way of antiquated and un-enforced laws that nevertheless remain on the books. And if it were enforced by magistrates, what would that matter if juries refused to convict? It’s critical that there be a cultural foundation to any law; that the laws, and especially their constitutional foundation, are generally "believed in."

Greenwald and others might rightfully respond that laws and intentions are mutually reinforcing; that if we’re willing to tolerate a legal evisceration of the fourth amendment, we’re increasing the likelihood that it won’t be taken seriously in general — that we’re helping to corrode the requisite cultural foundation. And while there always will be excesses by the powerful, there’s an important balance to be maintained, lines that can’t be crossed without democracy degenerating into something else entirely. They would also be right to note that while (1) is true, there’s a big difference between lack of privacy and the use of private communications as evidence in a court of law. Reconsider the case of the aggressive DA who wants to trump up some charge, say "conspiracy"; going through volumes of your communications and then arguing for sinister interpretations of your most intemperate moments would be a good way to do that. That takes care of (3) as well.

Finally, Greenwald and others might note that while the FISA court approved almost all warrant requests, its protections were more in the request than the approval. Those requests had to specify targets, probable cause, and "facilities" — phone numbers or email addresses. No mass surveillance requests were rejected because none were considered.

For all these arguments, (4) is still a critical stumbling block for me. I’m outraged (and stunned) by torture, suspension of habeas corpus, indefinite detention of innocents, war crimes, and all the rest. And these outrages ought to be repulsive to any decent human being. But while I’m fairly convinced by Greenwald and others that the changes to FISA are not a good thing, I don’t they’re as obvious as other excesses, and I suppose I’m too cynical to believe that what’s written down is the most important determinant of what happens. In fact, torture and habeas corpus are cases in point.