Democracy & Technology Blog Limiting terrorist surveillance

There was an interesting hearing on “Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans’ Privacy Rights” in the House Judiciary Committee on Wednesday. Former Rep. Bob Barr (R-GA) claimed that,

Essentially, thanks to this law, the government has potentially carved out from Fourth-Amendment protection an entire class of communication — electronic communications going to a person outside the United States, or coming to a person inside the United States. There is — and here again contrary to the public missives by the Administration and its supporters — no requirement whatsoever, implied or express, that even one of the parties to such category of communications subject to warrantless surveillance would first have to have any known or even suspect connection with any terrorist or other targeted group or activity.

Barr also repeated the warning of Judge Royce Lamberth, that “you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war…”
But no one — George Bush included — is advocating that …
Chairman John Conyers, Jr. (D-MI) meanwhile identified three things he wants before he will support a renewal of FISA when it expires in six months:

  • First, we must be able to conduct real and meaningful oversight on the surveillance program.
  • Second, we must provide the courts with a meaningful role in reviewing surveillance that applies to American citizens.
  • Third, we need to consider the role of the telecommunications carriers.

Conyers wants to know the entire history of “warrantless surveillance” and says it’s critical that Congress “place some check” on governmental power in this area. Conyers also wants to learn what role companies played in the program, including “why they volunteered in the first place, and what promises were made to them.”
Of course history proves that if you allow politicians to conduct domestic surveillance eventually they will use it to monitor and intimidate their political enemies and other troublemakers. On the other hand, history also proves surveillance is an indispensable tool for conducting war. There was extensive surveillance under Lincoln, Wilson and Roosevelt. FISA, enacted in the aftermath of Watergate, has always been about striking the right balance. But considering that many lawmakers of the 1970s served in World War II, I suspect Congress was trying to prevent another Watergate while ensuring that the country could win another war like WWII. Although some people oppose warrantless surveillance even of terror suspects, the real question ought to be whether warrantless surveillance can be conducted against terror suspects without eroding other civil liberties. Judge Richard Posner in the past has made three excellent suggestions:

One is that interceptions for national security purposes can only be used for national security purposes. So in other words, if you have some large scale surveillance program and you’re listening to a lot of people and so on, and you discover that one of these people is not in fact a terrorist but he doesn’t pay his taxes, doesn’t pay child support, employs illegal immigrants or what have you, I would say no, that information can’t be used to prosecute this person for any other reason. It can only be used to deal with a national security threat.

Currently there are all kinds of evidence that is inadmissible in a judicial proceeding, and Posner would add this to the list. A similar provision is included in the current version of FISA.

The other thing would be to make sure that whenever someone’s conversation is listened to or e-mail is read by an intelligence agent, intelligence officer, a record be made who is the person, why did they listen, what did they find out and so on, and this information about who is monitored should be turned over to watchdog committees in Congress, maybe the executive branch, maybe even some kind of judicial organ to make sure that these are bona fide national security investigations.

The full Posner interview from The Glenn & Helen Show (Aug. 28, 2006) can be found here.
Another of Posner’s ideas, that of creating a separate domestic spy agency to assume the FBI’s domestic intelligence responsibilities (see “Terrorism– Posner’s Comment” and “A Domestic CIA“), would also help to ensure that evidence obtained from the surveillance of terror suspects wouldn’t tend to be used against others. Posner would model the agency after the British domestic intelligence agency — MI5 — which has no arrest powers and no responsibilities for criminal investigation — and “none of the institutional hangups that go with such responsibilities.”

The British understand that a criminal-investigation culture and an intelligence culture don’t mix. A crime occurs at a definite time and place, enabling a focused investigation likely to culminate in an arrest and conviction. Intelligence seeks to identify enemies and their plans before any crime occurs. It searches for terrorist sleeper cells in the U.S. with no assurance of finding any. Hunting needles in a haystack is uncongenial work for FBI special agents. And so at the same time that the attorney general was testifying before Congress that the National Security Agency’s intercepting some communications of U.S. citizens is essential to national security, leaks from inside the FBI revealed that special agents are disgruntled at having to chase down the leads furnished to them by NSA. FBI special agents–the bureau’s only operations officers–want to make arrests, and so they zero in on animal-rights terrorists and ecoterrorists–people known to be committing crimes and therefore relatively easy to nail. These people are criminals and should be prosecuted, but as they do not endanger national security, prosecuting them should not be an intelligence priority.

Besides creating better institutional dynamics for preventing terrorism, a domestic spy agency — which would be evaluated on the basis of thwarting terrorism, not convicting criminals — would also have diminished incentive to furnish other law enforcement agencies with evidence of suspicious behavior unrelated to terrorism.
But one gets the feeling that the FISA debate is less about solving problems than about sticking one’s political opponents.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.