Counter-Arguments: Gathered and Answered

I am on a new server, one that claims to be able to handle a bit more volume.  With all the confidence such a claim inspires, it might advance the debate if we take a shot at systematically addressing all of the main criticisms and counter-arguments that resulted from my previous post on the NSA controversy.  For purposes of clarity, let’s do this in the Q&A form.

Q.  First of all, you do know that you are a crypto-fascist and naive shill for the burgeoning surveillance state.

A.  Yes, apparently so.  Yesterday, I was a neo-Marxist arguing against the totalitarian overreach of the drug war and the need to decouple capital from our governing processes.   You go issue to issue, ignoring all the proper ideological prime-directives, and eventually you wear all the names.

Q.  But what?  You love wiretaps?  Is this about the TV show?

A.  No.  I was a police reporter covering the urban drug war for about a decade.  I read a lot of Title III affidavits.  I’m fairly comfortable with some of this stuff, and much of the coverage surrounding the revelation of the Verizon court order struck me as uninformed.

Q.  Wait, you covered some old drug cases in the 1980s and 1990s and you think that entitles you to weigh in on national security issues?  And on the technological capabilities of today’s digitized data-gathering?

A.  Maybe, maybe not.  But this being the internet, where anyone can say pretty much anything if they believe it loud enough, I’ll take a shot.  Can we get past all the weak-ass ad hominem shit, and go forward with this?

Q.  Yeah, no problem.  For starters, you made an analogy to a Baltimore case in which the police put DNRs on city pay phones and captured phone data — even though they didn’t have specific names of suspects that they could link to those phones.  And even though in doing so they recorded the phone data from thousands of citizens who were using those phones legally.

A.  Correct.

Q.  That is not analogous to the Verizon court order.  The government now seems to be seeking the phone data of damn near every American.

A.   It is analogous in the way that matters, which is the legal definition of what constitutes a violation of privacy under the Fourth Amendment.  And in the Baltimore case, and in many other cases before and after it, the working logic was that the U.S. Supreme Court had ruled that there is no expectation of privacy for phone caller data — what numbers you called, when you called them, from where, and for what duration.  Because contractually, you as the phone user share this data with your phone carrier — a third party — the expectation of privacy has long been held to be minimal.

Q.  Sure, I get that there is a lower privacy for call data than for wiretapping, but the Baltimore case was pay phones.  Those are public.

A.  No, actually, if anything there was a higher concern for privacy because they were pay phones.  People using pay phones — to the extent they even exist anymore — have as much expectation of privacy as people who use their own home phones, under the law.  There is no legal difference.  In fact, at the later point of the wiretaps, there was more concern by the Baltimore Circuit Court about privacy violations on the pay phones for the simple reason that the detectives would certainly be wiretapping calls made by Baltimore citizens who were doing nothing illegal.  With a home phone, the presumption is made that the targeted suspect or those involved with him will be using the phone.  Not so with the pay phone.  Consequently, in the pay phone case the detectives were made to go the extra mile and have the pay phone under observation.  They were told to stop recording immediately if someone other than the suspect was seen using the phone.  On a home phone, the usual “minimization” procedures allow them to listen for a period of time before cutting off the call.  In short, legally there was zero difference.

Q. This was a small geographic area. You’re saying those Baltimore judges would have let the detectives put DNRs on every pay phone in Baltimore if they asked?  What about every cell phone?

A.  Well, honestly, the BPD had about as much manpower as you’d need to man maybe two wiretaps and a dozen or so DNRs citywide.  Anything more than that and the CID budget was blown.  But let’s say they had the capacity to do more.  Let’s say they knew from informants that pay phones all across the city were being used by, say, a citywide gambling organization to make coded calls to digital pagers placing bets.  And lets say they had the troops to gather and analyze all that call data and find the coded numbers and identify suspects.  Yes, a judge would say go ahead, in my opinion.  The point is this:  It has long been established by legal precedent that acquiring call data is not a Fourth Amendment violation.  Ergo, if obtaining it from a dozen or so payphones and modestly impairing the privacy of thousands of citizens for a period of time is deemed no violation of the Fourth Amendment, then doing so for all pay phones and doing so for tens of thousands or a hundred thousand Baltimoreans is also no violation.  It may be hard to accept emotionally, but the argument here isn’t about the numbers of innocent civilians who relinquish their phone data.  Whether its thousands or tens of thousands or hundreds of thousands, or perhaps — we’re soon going to find out from the ACLU suit — even millions, if the intrusion isn’t a violation of our privacy rights, then it isn’t.  If it is, then it is.  To argue that this case was localized and specific ignores the underlying judicial affirmation on call data, which is this:  If law enforcement can explain how they can only achieve a legitimate investigative goal in a given case by gathering call data on certain phones — even if the phones, in the Baltimore case, are for public use at large — then so be it.  And call data has for a long time been considered outside of the Fourth Amendment.  That’s not from the Obama administration, or Bush, or even Reagan.  Try Jimmy Carter.

Q.  Okay, well that’s payphones.  What about…

A.  Cell phones, right.  I covered other cases in which the BPD and federal law enforcement pulled phone data from all the calls bouncing off entire cell towers for weeks and months at a time.  That’s all calls by tens of thousands of Baltimore citizens giving up their metadata to a police file merely because their calls went through a given tower during a given time period.  All those people have Fourth Amendment expectations of privacy, and all of them were using their private, personal cellphones.  But again, call data has long been ruled to have little expectation to constitutional guarantees of privacy.  And not because of the war on terror or national security issues — this has long been true for domestic law enforcement.

Q.  Hold on.  But in the Baltimore cases, weren’t they investigating some bad guy to begin with?  Wasn’t there an initial target?  Or were they just setting up on phones and saying, let’s see if we can find any criminal activity?

A.  Yes, there was an initial target.  And certainly some initial phone information.   Obviously, they were looking to see if that number could be tracked to others through the cell tower or through the pay phones.  That’s how the game is played.

Q.  Ah ha!  Gotcha.

A.  How so?  The scenario in the original essay suggests the same dynamic.  An overseas phone number linked to suspected terrorist activity is achieved through investigation or informant information.  That number is then routed through an NSA data base of billions of domestic and domestic-to-overseas calls.  Same logic, larger scale.

Q.  But the scale is the thing.  You’re willing to let the government have every single American’s call data for an determined period of time?

A.  The scale is extraordinary; it’s global.  But of course, these are proactive investigations into global terror and technological capabilities now make such investigative efforts possible. And still, regardless of scale, the ethical and legal argument is the same as what happens with any DNR search in any domestic criminal investigation. If it has been ruled time and again for more than three decades that investigative techniques that acquire the call data of thousands or tens of thousands of innocent Americans is not a meaningful intrusion on the Fourth Amendment, then with regard to every single American affected in every single instance, it is also not legally a meaningful intrusion for millions or tens of millions.  It doesn’t necessarily follow that scale transforms the legal ethos, at least so far in terms of legal precedent.  The Supreme Court may at some point decide that while a certain action doesn’t individual impair the rights of thousands or tens of thousands with regard to call metadata, maybe the same action does so when it involves millions.  But you can see a fundamental logical problem there.  Either something is a violation of privacy, in which case why are we doing it to tens of thousands?  Or it isn’t.  And indeed, with regard to the NSA program, consider: For the average American, there is a certain greater anonymity in being part of call data base of billions and billions of calls. Under the FISA court order, no human is even assessing your call data, at least not until your number gets linked with someone in Chechnya.

Q.  But the Baltimore cases, they didn’t set up on the pay phones or the cell tower until they were already investigating a suspect and a suspected crime.  Here, you’re setting up on every American phone in advance of even having a number.  Why not learn the suspect’s number and then see who he calls?

A.  Time matters.  First of all, the retroactive activity of such a phone can be valuable to investigators.  Who he called a month ago or even three days ago might matter in terms of proactive response to an actual terror plot.  And if you sit on the phone and wait for it to dial a stateside number going forward, in order to begin picking up the threads of the conspiracy, you’re burning time.  Time is important in proactive counter-intelligence.  More than that, the NSA has extraordinary computer capabilities, but even in the most exigent circumstances, how long do you think it could take — once a suspect number was identified overseas — for intelligence agencies to get a court order from the FISA court, forward it to Verizon and then — here’s the part that we don’t know — have Verizon achieve that immense data base and forward it on.  How much bandwidth is required?  And then how long after that for the NSA analysis?  I don’t know the answer to those questions, and neither do you, but what the government is saying to the FISA court is look, in order to achieve a real-time asset in this critical investigation, we need to have the data base set up.  They’re also saying they won’t access that data for any other reason, that it won’t be used for domestic purposes, and that they will only pull the metadata and begin investigating the call history of specific Americans once a phone number has been specifically linked to a suspect phone.  And at that point, of course, all the Fourth Amendment protocols still have to be observed before a wiretap can be achieved.

Q.  Why can’t they access the call history data from the overseas phone side?

A.  I’m guessing that such a process would take even longer going through overseas cell carriers.  I’m also guessing that there would be concerns about security being breached by a U.S. intelligence inquiry of that kind in certain locales.

Q.  I’m not buying it.  The chance that there’s a ticking bomb ready to go off somewhere at the moment they get on this bad guy’s cellphone — that’s pretty unlikely.  Why can’t they just wait on the guy to make some calls.  Then they can only to go Verizon and other carriers for those specific numbers and pull that meta data, without having to collect everything on all of us.

A.  Well, what if he doesn’t make another call?

Q.  C’mon.

A.  No, I’m serious.  Because there’s something else about cell phones that even street-level drug dealers in the U.S. have known for fifteen years, which is that they are disposable.  Hell, we sell disposable phones over the counter in convenience stores.  What makes you think it’s different for anyone operating in the echelons of a terror organization that has been at war with a technologically aggressive enemy for more than a decade now?  In the time that you want the FBI and NSA to wait around hoping that the Verizon data base will reach them and be ready for a computer run, or for that suspect to begin making fresh real-time calls to co-conspirators, he could be dumping the phone and getting a new one.  It’s arguable that the average shelf-life of a suspect cell phone in the war on terror is a day or two at best.

Q.  Fine, so there is a theoretical reason for the NSA to have this data on hand, in advance of a specific computer run.  But…

A.  Which is an argument that was likely made to the FISA court every few months, when this program came up repeatedly for renewal.  Because while the court order has been leaked, there’s probably a very long, very detailed document written by NSA and FBI investigators arguing all of this and more.  No one has leaked that document yet, but it’s out there and it’s the argument that convinced the FISA judges to renew this program time and again. And it’s all of the argument in that document — as well as the long, legal history of call data being given minimal privacy value under U.S. law. — that the ACLU is going to have to overcome in its lawsuit.  Saying simply that you can’t ask for this data from so many Americans without a good reason isn’t going to cut it, I’m guessing.  The government is going to have whatever reasons on hand they detailed for the FISA court in the first place.

Q.  Don’t interrupt me.

A.  Sorry.  I get carried away.

Q.  Yeah you do.  What I was gonna say was, okay there’s a theoretical reason.  But you do realize that this data can be misused.  With today’s technology and the capacity to track people using metadata, the misuse of data such as this could be valuable to a totalitarian surveillance state.

A.  It could indeed be misused.  Every law enforcement asset can be misued.   A patrolman can misuse the 9mm on his hip and kill an unarmed, innocent citizen.  A search warrant can be misused to plant evidence.  An informant can be misused to manufacture probable cause.  An interrogation room can be used to induce a false confession or beat the hell out of people.  And yet we still allow cops to carry guns, keep informants, interrogate suspects and write search warrants.  Because absent those elements, very few crimes will ever be solved.  And this data base, too, is a double-edged sword.  In fact, as I said in the original post, for all we know the data may already have been misused or, certainly, it is likely to be misused at some point by someone in the future.  All law enforcement assets are inevitably misused at some point in time.  Remember that the existence of the FISA court — as flawed a creature as it is because of the overwhelming reliance on secrecy — didn’t exist until the reforms of the Church Commission.  Before then, the executive branch simply gathered whatever information it wanted by executive order, without any legal oversight at all.  But even so, too much of this process is out of public view to make anyone comfortable.

Q.  And yet you’re willing to let them have all this data.  That’s pretty blase.  You say it likely will be misused, yet give it to them anyway.

A.  The data exists.  It’s not going away.  And our technological capabilities are not something that we can pretend don’t exist.  But if I am correct that allowing this existing data base to operate in real-time is indeed a counter-terror asset, then denying it to the government is a very dangerous game, not just in terms of counter-terror, but in terms of our overall defense of privacy and our civil rights.

Q.  The fuck you say?

A. Think about it in terms of realpolitik.  If we deny a viable tool to law enforcement and there is another attack on a major scale on American soil, try to imagine the first congressional hearing at which the FBI director or NSA director is asked why we didn’t have any idea about this or that suspect’s travel to and from Pakistan, or his telephonic contacts for the last eighteen months with this domestic co-conspirator or that, and he answers:  Because we did not use our telephonic monitoring capabilities.  At that point, it is hard to overestimate just how much pressure our civil rights and privacy might actually be made to endure, and how little oversight might be required of American law enforcement and intelligence-gathering for a generation hence.  On the other hand, if indeed there are instances in which the privacy of Americans is breached using this data, or when this data is used as a tool to attack civil rights or political dissent — it’s at that precise moment that some meaningful reform becomes a viable and practical political agenda.  Again, the Church Commission followed the Nixonian excesses; American politics is nothing if not a pendulum.  Yes, it would be nice if our national political discourse could be a little less reactive, but good luck with that.

Q.  If you wait for Americans to have their civil rights violated it’s too late.

A.  The same can be said for terrorism, of course.  If you wait to use your counter-intelligence capability, something might blow up.  But with regard to the violations of civil rights, too late for what?  If you wait for the misuse of this data, there will be American who suffer affronts to their privacy and perhaps even violations of their basic rights.  And that will be a stain on our republic, I know.  But we put all the Japanese-Americans into camps.  Lincoln suspended habeus corpus and locked up without criminal charge an entire state legislature to prevent a vote of secession.  J. Edgar Hoover had his files on half the country.  This country has endured some notable affronts to our constitutional guarantees and managed, time and again, to right ourselves and change course.   We’re  a lot more resilient than we credit ourselves; and historically, even under much greater national duress, it isn’t that thin a line between a republic and a totalitarian surveillance state. There are a good many points in between.  In fact, at this moment, I’m far more affronted by a half dozen other authoritarian overreaches involving the drug war, Guantanamo, the executive branch’s use of drones against American citizens, or the DOJ’s chilling effect on a free press through the pulling of reporters’ phone records.  Get ripe over all of that.  Those abuses are actually occuring. Or if you are convinced that the future misuse of this data base is the greatest authoritarian threat, then play a smarter, longer game and allow the limited, court-sanctioned use of the data in counter-terror programming, and the save all of the outrage that adorns this moment for a government that actually violates someone’s rights.  Not in theory, but in deed.

Q.  Okay, but if we wait for the misuse, how do we even know about it?  As you point out, the FISA court is enveloped in complete secrecy.

A.  Now you’re at the crux of it.  This is where this current controversy can allow us to take a legitimate stand to protect our privacy.  In fact, I think the overwhelming secrecy of the FISA process is untenable and damaging to law enforcement’s own case.  The issue of this call data is, honestly, no surprise to those who have been following those moments in the last several years at which portions of the iceberg have broken the surface.  There has been enough side-references that even if you didn’t understand the details, you had to know that we were monitoring overseas communications in an aggressive way, and you had to assume that they would be trying to track connections between overseas and domestic targets.  What shocked everyone is simply the sudden and blunt statement that yes, the government has legally been granted the data on all of our phone calls.  Had the NSA director or FBI director, or someone in the FISA process given the public even a general sense of what was happening and why, the revelation of this court order might have come with some measure of context.  But more substantial is the fact that secrecy at this level is inevitably going to lead to the misuse of any law enforcement asset.  The FISA process needs to be opened up; that’s the real reform here.  Not denying ourselves our own technology for an actual societal goal, but creating a framework to prevent the misuse of that technology.

Q. But how?

A.  There needs to be some independent review, some independent oversight of the FISA court, while at the same time maintaining the secrecy for national security purposes. Just spit-balling, but how about a FISA Review Panel comprised of law school deans, some civil liberties advocates, a couple former U.S. senators, etc.  All of them carefully vetted for national security clearance.  Give an independent panel the charge of reviewing all of the FISA rulings and proceedings and issuing a periodic report to the intelligence committees and the White House.  The cover sheet of that report, without referencing specific casework or national security programming, provides an overall assessment of the FISA performance with regard to civil liberties and privacy issues and is made public. The full report goes to the president and the committees.  Still secrecy, but now at least, independent eyes are on the process and there is, in effect, a report card that all those law school deans and civil rights attorneys will stand behind if the shit hits the fan.

Q.  Isn’t this a lot of trouble for a lot of nothing?  I mean, the war on terror?  I know Boston got hit — but those were two homegrown actors.  And 9-11, that was more than a decade ago.  So very many more people die from regular homicides….

A.  Don’t get me going on gun control.

Q.  Or from car crashes.  Or from prescription medicines.  We’re trading our liberties when your chance of getting killed by terrorism is less than your chance of getting hit by lighting.

A.  That’s statistically true, but in terms of both the credibility of governance and the nature and reality of terrorism, you’re not being entirely honest.  It’s regrettable that so many other things will take the lives of so many more Americans, but terrorism is unique in that it seeks to extend a political argument and create if not an existential threat to the nation as a whole, then a threat to a nation’s ability to maintain its political course and policy.  It is about more than the bodies, it’s about the provocation and fear that follow the bodies. That’s why they call it terror. Israel is a state long accustomed to living in a volatile neighborhood, and they are capable of enduring terror campaigns the likes of which we have never seen, yet there is no denying that even that nation was made to end a coalition government and abandon an ongoing peace process in the wake of a terror campaign by extremists.  In this country, I would argue that the costs of 9-11 were not merely the intervention in Afghanistan, which followed directly from the World Trade Center attack, but the secondary and much more problematic war of choice in Iraq.  Again, as a matter of realpolitik, the costs of enduring a large death toll from a massive strike on U.S. soil will not merely be the bodies, but in the demeanor that the U.S. displays in the years to follow.  We ran a fever after 9-11 and it showed in our foreign policy, to the point of great tragedy.  And what might we do after the next major attack, amid another several thousand dead?  Making a pie chart out of the body count and dismissing the challenge that terror represents to any credible government’s need to maintain both the safety of its citizens and its own national policies — that’s almost purposely stunted.  It ignores the key component of any terror campaign.  And saying, well we should ignore that component and just sweep up and go about our business?  Good luck with that, too.  That’s an argument for political luftmenschen.

And even as far as the raw statistics:  It’s a little bit disingenuous for the same critics of a proactive response to terror to note that the technology of data collection is now so advanced that we can’t risk its use, but not to acknowledge that the technology of mass killing is rapidly expanding as well.  Deaths from prescription medicine not only pose little threat to the our national course and psyche, but they’re going to increase in number by ones and twos.  Those 3,000 deaths from terror over the last decade is a number held down perhaps by the fact that the threat of terror is exaggerated, perhaps by our proactive counter-terror measures, perhaps by both factors.  But that number could, in a single instant, double or triple.  Technology cuts both ways, and it’s fundamentally more honest to acknowledge that truth on both sides when making a statistical equation about cost vs. risk.

Q. Okay, well if all of this is so goddamn legal, then why keep it all a secret?  Why try to hide the program?

A.  Seriously?  You’re asking why they would try to keep secret the details of a program by which they would surreptitiously monitor terrorists through their communication?  I’m guessing that right now, if you live in a mid-sized American city, there are at least two or three wiretaps and maybe a dozen or two DNRs gathering numbers in various domestic investigations.  And those DNRS and wiretaps are not only recording the phone data and in some cases the conversations of suspects, but the data and conversations of innocent citizens as well.  And you haven’t been told about any of those efforts, have you?  Why in hell do you think law enforcement would make public their efforts to gather information from targets at any point before their ability to do so was fully exhausted?

Q.  What about the PRISM program? You okay with the government reading your emails and following your internet activity?

A.  I think they should be doing the same thing with the internet as with telephonic communication.  And it is my understanding from the reporting that PRISM only targets overseas communications.  But having said that, our privacy law on e-communications domestically doesn’t correspond to our existing safeguards for telephonic content.  Especially because the capture of internet data is effectively the content itself; there is no comparable thing to call data.  A good argument could be made that legislatively, we should do more to give at least person-to-person e-communication the same protections as telephonic conversations.  It would indeed be unacceptable if PRISM were expanded to the point where everyone’s actual internet content was accessible without a warrant commensurate not with metadata, but with a wiretap itself.  But that said, if there is reason to believe that our adversaries are using the internet to communicate, I would hope that we’re approaching those communications in a comparable fashion.

Q.  You done?  It’s like you had an answer for everything.

A.  Well, let’s be honest here.  I wrote the fucking questions.  But I went through the comments from the last post and really, those are the very ones that kept coming over the transom, time and again.  Go back and read ’em yourself and you’ll see.  I’m sure people have other arguments to make.  Maybe better ones than landed here.  Am I still a crypto-fascist?

Q.  Probably.  You’re definitely an argumentative prick.

A.  Do tell.