The domestic surveillance kerfluffle

I haven't posted too frequently for a couple of days because I have been really disheartened by this burgeoning domestic intelligence gathering storm. The initial reports all came from the New York Times, Washington Post, Los Angeles Times and Newsweek. These reports, most of which have been opinion pieces by the usual liberal suspects, have been unanimous in their condemnation of the program and of the president.

About the only bright light during the past few days was President Bush's spirited defense of his authorization for what I am beginning to believe was an "Able Danger" type of data mining operation using heretofore unknown technology. Technology that the government doesn't want anyone to know about. I haven't paid too much attention to the blogs and the opinions expressed therein. I already know what they are going to say. I have been waiting for the more level-headed experts on law and intelligence to weigh in.

In that vein, however, I've not been offered much hope. The fellows at The Volokh Conspiracy, specifically, Orin Kerr, while urging caution due to lack of specifics about the program, wrote that he felt that the program, based upon what little he knew, seemed illegal. Additionally, there is now available a radio discussion between Orin Kerr and Erwin Chemerinsky. Kerr, professor of law at George Washington University, again says that he simply doesn't know enough details to definitively declare the practice legal or illegal. Chemerinsky, professor of law at Duke University, labors under no such hesitations. He declares, with no doubt whatsoever, that the president has violated the 4th Amendment to the Constitution. The basis of his argument is that the procedure for getting a warrant from FISA (Foreign Intelligence Surveillance Act) to conduct surveillance is very efficient and, in fact, 99.5% of wiretap warrant requests have been granted to the government. There is a dispute as to how long this procedure takes. Kerr, who worked in the justice department and had to request wiretap authorization upon occasion, says it take 1-2 weeks. Chemerinsky says 24-48 hours, based upon what he has heard.

Professor Chemerinsky also said that, if the president wanted broader domestic surveillence powers, he should have gone to Congress to get them. This, in my opinion, is fatuous. Going to Congress would have meant that the administration would have had to have written some kind of procedure or act or law and then gone to Congress for its approval. How long would that take? 2-4 months, 2-4 years? That's a little silly, in my opinion.

My problem with Prof. Chemerinsky's argument is that, and I am guessing here, conventional wiretap technology is not what we are talking about here. We aren't talking about an agent sitting in a dingy basement room somewhere listening in on telephone conversations and recording them while he takes notes. That kind of stuff went out a long time ago. I think what we are talking about is data mining. The machine surveillence of telephone conversations and electronic communications where high speed super computers scan for key words and phrases. If any of those key words and phrases appear, something like, "Osama says blow up the Oak Street Dairy Queen and kill all the infidels and apostates along with their murderous progeny, God willing," the machines would kick this out for human review.

If the machines do not hear or read such key words or phrases, humans would never know the communications even took place. So the question, at least in Prof. Chemerinsky's mind, is why the government cannot get warrants, even after the fact. The reason is simple. Probable cause. The government would have had to have shown probable cause to have conducted the original data mining operation which found the key words and phrases. The government cannot do that. There was no probable cause to conduct the mining in the first place. Therefore, using Prof. Chemerinsky's own argument, a FISA judge would not grant the wiretap authorization.

Both professors agree that this is probably just a partisan political fight with no long term effects like censure or impeachment.

Now comes Judge Richard Posner, U.S. Court of Appeals for the 7th Circuit and a senior lecturer in law at the University of Chicago, writing in The Washington Post, who seems to support my position. He says,

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.

Judge Posner's view is unique. I haven't seen it before. Machine surveillance is not a 4th amendment violation because no human is involved. Hmmmm, veddy interrresting.

So we are back to the after-the-fact warrant request. And, again, intelligence officers cannot request warrants based on data mining technology because they lacked probable cause in the first place. Therefore, the president must authorize the continued surveillance.

And Judge Posner takes this a step further. He says we need a domestic intelligence branch in the government, like the British, French and Germans all have. In The United States there is no domestic intelligence gathering organization. Judge Posner's view is that this fault renders us vulnerable and also necessitates some action on the part of a responsible government to fill in this dangerous gap. The president did this.

There now, everybody convinced? I certainly feel better, how about you?

TAGS: FISA, Orin Kerr, Erwin Chemerinsky, Judge Richard Posner, domestic surveillance