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Wednesday, May 03, 2006

Senator Leahy on Privacy in the Post 9/11 World

Hat Tip to Jeff Porten for this. Some thoughts:

1) It's good to see the Senator get around to discussing this. I said many of the same things on March 25, 2002. Of course, not nearly as many people were listening to me.

2) I'm constantly amazed at our elected officials' ability to say nothing in the maximum number of words

3) Regarding the NSA Wiretappings, a few points:

First, point taken about the warrants. I sincerely believe the White House's argument about the need for speed in these situations, but given FISA's stipulation for obtaining warrants retroactively, I don't know why they didn't get warrants. It is interesting, though, that the Bush administration has requested more FISA warrants than any other administration before it, so it's not like they don't believe in the process. No one has ever theorized as to why they followed the law so many times before but were so nefarious here. They must have believed this to be a special case. I'm glad we're investigating the reason why, and I hope when it's found, we can resist the need to spin it in a big game of "gotcha."

Second, it really, really bugs me when people talk about the wiretapping as if Bush himself was personally wiretapping the phone calls or random Americans. Leahy, to his credit, at least implies (but doesn't say) that the wiretaps were done on those whose phone numbers were discovered in the "recent calls" list of cell phones obtained from known terrorists in Iraq and/or Afghanistan.

Third, I'll note that Leahy blatantly plays the "politics of fear" in much the same way the Republicans are accused of doing. To wit: Can they bug your home? Can they open your mail? Hey, who's that behind that door?!?

Fourth, a serious question about wiretapping purely domestic calls: Let's say our troops find two domestic numbers on cell phones in Iraq. Should they be able to listen in on a conversation between the two? I'm not so sure the answer is an automatic "no."

Finally, history just doesn't bear out Leahy's assertion about "the chilling effects of surveillance on the right to protest and to express dissent in our nation." His own examples seem to disprove his point: did Martin Luther King, Jr. feel stifled to express his concerns? Were the Vietnam War protests curtailed in some way? In fact, logic suggests that if the goal of surveillance was really to squash protest and dissent, it wouldn't be secret at all. After all, people won't be afraid to speak unless they know they're being listened to.

4) Regarding his rather predictable call for congressional hearings on the matter, a familiar cliche comes to mind: I have a hammer, therefore this problem must be a nail.

posted by Brian at 3:13 PM


  • Oh my Lord. 10,000 words on this topic, easy, as soon as my article is published and I can cite myself.

    But, in brief:

    1) yes, there is evidence that NSA wiretaps cover domestic calls. Details are under court seal.

    2) the "special case" is evident -- the FISA court does not have the jurisdiction to monitor, say, all 10 million calls coming in over a fiber-optic cable without violating the rubric of probable cause. Therefore, NSA wiretapping was forced to resort to illegal (or extralegal, if you will) methods.

    3) it is at least clear that random Americans were not wiretapped -- it's rather ALL Americans who made an international call that passed through particular (and perhaps all) fiber-optic trunk lines. The verdict is still out on how many purely domestic calls were included.

    4) Whether your hypothetical question is an automatic "no" hinges on your belief as to whether we should obey our own laws. The FISA Act makes this a criminal offense.

    5) I will personally attest to the fact that the risk of arrest and surveillance is chilling to the activist community. Sorry, I'm not sure what expertise you're bringing to this issue, but I'll be glad to regale you on this.

    6) Your belief in the need for Congressional hearings, again, hinges on whether you believe Constitutional oversight is a moral and legal obligation, or window dressing.

    By Anonymous Jeff Porten, at 5:27 PM, May 06, 2006  

  • Clearly, you know more about this than I do, so I look forward to the 10,000 words.

    My understanding from what I've read, though, is that the distinction you're drawing is a technical one, not a procedural one. In other words, the most efficient way to to "wiretap" a cellphone is to gain access to the source technology that the calls go through, and then pick out the calls you want to listen to. Now, I understand the privacy concern with the government having access to that source data. They could listen to any conversation at that point. This doesn't, however, mean they did. If that's the heart of the issue here, then I'm guessing we're going to agree to disagree: I feel comfortable that this is just a matter of the technology being ahead of the law, and that eventually, there will be a technical way to give the NSA access only to the calls they have cause to tap and not others. My guess is that you'd rather them not have access to any calls until this is worked out.

    Re: the hypothetical - I'm aware that it would violate the law. My question was meant to be "do you believe the law should change." I think I do. If you take as a given that both parties are terrorists (even though you couldn't know that 100% at the time), does it make sense to spy on their calls to other terrorists outside the country, but not to each other?

    Re: activism and the chilling effect of surveillance - I bring no expertise whatsoever. My point was that the examples Leahy gave (Martin Luther King, Vietnam era protesters) were among the most vocal protesters in our nation's history, so it seems disengenuous to suggest that they were less so because the government was watching. Maybe those were just bad examples...

    And finally, your belief that Congressional hearings are equivalent to constitutional oversight hinges on whether you believe Congress has any expertise in this area/desire to solve this problem, or whether you think they're just out for politics and attempting to show motion regardless of progress.

    By Blogger Brian, at 12:33 AM, May 07, 2006  

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