January 31, 2006


Wire Trap: WHAT IF WIRETAPPING WORKS? (Richard A. Posner, 01.26.06, New Republic)

The revelation by The New York Times that the National Security Agency (NSA) is conducting a secret program of electronic surveillance outside the framework of the Foreign Intelligence Surveillance Act (fisa) has sparked a hot debate in the press and in the blogosphere. But there is something odd about the debate: It is aridly legal. Civil libertarians contend that the program is illegal, even unconstitutional; some want President Bush impeached for breaking the law. The administration and its defenders have responded that the program is perfectly legal; if it does violate fisa (the administration denies that it does), then, to that extent, the law is unconstitutional. This legal debate is complex, even esoteric. But, apart from a handful of not very impressive anecdotes (did the NSA program really prevent the Brooklyn Bridge from being destroyed by blowtorches?), there has been little discussion of the program's concrete value as a counterterrorism measure or of the inroads it has or has not made on liberty or privacy.

Not only are these questions more important to most people than the legal questions; they are fundamental to those questions. Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law--or how to change the program to make it comply with the law--without destroying its effectiveness. Similarly, if the program's contribution to national security were negligible--as we learn, also from the Times, that some FBI personnel are indiscreetly whispering--and it is undermining our civil liberties, this would push the legal analysis in the opposite direction.

Ronald Dworkin, the distinguished legal philosopher and constitutional theorist, wrote in The New York Review of Books in the aftermath of the September 11 attacks that "we cannot allow our Constitution and our shared sense of decency to become a suicide pact." He would doubtless have said the same thing about fisa. If you approach legal issues in that spirit rather than in the spirit of ruat caelum fiat iusticia (let the heavens fall so long as justice is done), you will want to know how close to suicide a particular legal interpretation will bring you before you decide whether to embrace it.

The problem for "civil libertarians" is that even before you get to this utilitarian analsysis you have to clear both the constitutional structure of the Republic and convince people that the feds listening to calls from terrorists is an abridgment of our civil rights.

Posted by Orrin Judd at January 31, 2006 8:40 AM

The same people also employ a pre-9/11 mindset of denegrating the competency of the country's enemies in taking aspects of something like the Brooklyn Bridge story, or the mistakes of the Herald Square subway bombers in the trial going on right now, and inply that these people are anateurish in the same way the 1993 WTC bombers were by demanding their money back from the van rental company which allowed police to track that cell down (yes, eight people died in that attack, but the focus in the aftermath of that attack was how clownishly inept these guys were in their escape attempt).

You can't prove a negative, so in their minds either the NSA program hasn't done anything provable towards stopping a terrorist attack, and even if it has resulted in some arrests, these people are terror wanna-be buffoons and really not worth the sacrifice to civil liberties the wiretapping program entails. They disdain and hate the administration and think it's evil, and while they may disdain the terrorists and think they're also evil, they're not as hated and not coonsidered as big an impending threat as the regime in Washington.

Posted by: John at January 31, 2006 9:35 AM

Not to mention that, aside from speculation, we don't even really know what the program is. Some speculation is more troubling than others, though the most likely speculation I've seen isn't at all troubling.

Posted by: David Cohen at January 31, 2006 11:02 AM

Troubling? If I were to speculate, I would say they were not merely mining for data thru some fancy schmancy algorithm, but were focusing on Muslims, especially those from certain mosques.
Further I speculate that is why the whistleblower leaked the information to the New York Times and to Democrats (since some Democrats seemed ready to roll as soon as the information was out)

Clear case of racial and religious profiling. Otherwise they should of had no difficulty working with FISA. Well that's my speculation anyway.

Posted by: h-man at January 31, 2006 6:45 PM

Puts paid to the liberal contention that Constitutional Scholars agree that the program is illegal.

Posted by: Robert Schwartz at January 31, 2006 11:16 PM

H-man: What if the neutral algorithm produces a statistical imbalance in its results? Does that make it impermissible?

By way of illustration, the analogy would be an empirically-based profiling formula for drug smugglers including such things as year, make and model of car, state of registration and indication of being heavily laden. Suppose such an "algorithm" coincidentially focused police attention disproportionally on members of one race or another. Weak-kneed politics aside, would that make it consitutionally impermissible?

Just maybe, focusing on communications to and from the Muslim countries frequented by enemy terrorists would produce such an imbalance of attention on--Muslims.

Life can be a bitch. It was tough being a German-American during World Wars One and Two; tougher yet to be a Japanese-American.

Posted by: Lou Gots at February 1, 2006 9:59 AM