Saturday, January 14, 2006

The Surveillance Double Standard

Gentle readers of SWNID, being thinkers, naturally also regularly read The American Thinker. But to be sure you don't miss this one: a story noting the NY Times's very positive take on the "Echelon" domestic surveillance program during the Clinton administration.

What's noteworthy about Echelon is that it screens nearly all emails and phone calls made in the United States. The super-duper computer that operates Echelon combs those messages for key phrases, (e.g., "Danny really bombed last night") and then kicks out suspicious stuff for further analysis.

Gentle readers will note that such a program was much more intrusive than anything that the Bush administration is accused of doing. They should note as well that it was put to nefarious political purposes by St. Hillary and her randy husband. The Thinker notes that insiders blew the whistle on the sharing of information from Echelon with corporate donors for use against competitors.

Gentle readers will also remember that the Republicans are the party of big business and the Democrats are the party of the little guy.

Having previously noted the existence of this program under Clinton, SWNID says again that Congress has been woefully negligent in not passing statutes to define what constitutes proper and improper use of Echelon and similar spying technology. The War on Islamo-Fascism makes this all the more imperative.

Of course, the recent Senate Judiciary Committee hearings make clear why the Congress doesn't do its job. Congress's job is now to posture before cameras. Governing is the job of the Supreme Court and the MSM.


JB in CA said...

Many thanks for this link. Of course we all know that the MSM has double standards when it comes to political/social/economic--you name it--issues, but it's still nice to see the hypocricy exposed in such high relief. It's also nice to have this sort of evidence at hand when conversing with the Michael Moores of this world. Not that it would cause them to relent, you understand, but that it might cause them to pause from hyperventilating for just a moment so that you can at least enjoy your lunch.

jpe said...

Two things:

first is this definitive smackdown of the American Thinker article.

Second, the Echelon program complied with FISA requirements.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

Bias as an explanation for the MSM not following this story is plausible not simply because of the similarities between Echelon and Bush's post-9/11 activities but because of the many ways that Bush's activities have been covered differently than Clinton's. So it's not all that impressive that one can find differences between Clinton's authorization of Echelon and what Bush has done. Those differences alone don't explain the media coverage. We must attend to the context of media coverage of Bush. There's no smackdown here, just a tendentious difference in judgment.

As to FISA, of course Echelon complied. And there are good arguments that Bush's activities comply as well, on the same terms.

But note what we've written, and not just what we've linked. For help, we'll shout:


jpe said...

As to FISA, of course Echelon complied. And there are good arguments that Bush's activities comply as well, on the same terms.

I'll try to put this simply, avoiding big words where possible: Bush's NSA activity violated the terms of FISA. His argument is that: either FISA is unconstitutional; or FISA was superseded by the post-9/11 Authorization of Military Force.

By contrast, ECHELON didn't violate the terms of FISA. Where US persons were spied on, a warrant was obtained.

You're right that Congress needs to change the law; even if they don't, though, the president doesn't have carte blanche to violate the law.

I know I didn't use the words "traitor," "Hitlery," or "Vince Foster" anywhere in there, so your attention probably wavered a bit, but give it a reread and I think you'll understand.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

It is patently not true that a warrant was obtained for every individual whose phone or email conversations were combed by Echelon. That would amount to ... let's see ... 280 million warrants? Well, let's deduct a few for the pre-verbal and anti-social. Make it 250 million. Did the FISA court issue that many warrants? And what would be the value of requiring warrants if they were issued in such quantity? If Echeolon was ever used in any meaningful way, it was used to listen in on conversations for which no individual warrant existed. Do the math. The "definitive smackdown" doesn't deal with this reality of Echelon.

So there's the point: before we had a war, Eschelon spied on Americans without warrants. And that was judged, implicitly or explicitly, to comply with FISA. Now we have a war. And we have a new statute, vague as it is, to fight that war. And we have a dispute about the scope of the powers granted under that statute.

The point, and I believe jpe is acknowledging it, is that we have a very typical constitutional argument between political parties, one in power and one out, about the limits of power of a branch of government. The problem is exacerbated by the reality of war. It is exacerbated further in that the current state of technology far outstrips the ability of statues or case law to set clear boundaries.

But it is exacerbated unnecessarily, and without respect to history, recent or distant, by the minority party's hysteria, supported and promoted by a media anxious to interpret every event in terms of Vietnam and Watergate. So instead of calling on Congress to enact thoughtful legislation to catch up to the technology and the times, we have political quid pro quo calls for impeachment of the President.

Not to mention whining from an employee of the Boston Globe, owned by the same corporation as the paper from which the alleged bias on this matter has been cited, about how unfair it is to accuse the media of bias.

We'll actually concede that last point, as it goes to the unprovable state of mind of the individuals involved.

But it is a sad situation when legislation passed in the 1970s, written by Frank Church and his isolationist Senate Intelligence Committee, is the gold standard in this discussion. It's sadder still when "intelligence failure" is the refrain to the song, but "police state" is the verse.

jpe said...

It is patently not true that a warrant was obtained for every individual whose phone or email conversations were combed by Echelon.

ECHELON captured signals between non-Americans, so no warrant is needed.

To summarize the rest of your post: you agree Bush violated the law, but think Congress should've altered legislation earlier. Media bias, Bush haters, Vince Foster and so on.

JB in CA said...

Well, there goes my lunch.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

Echelon did (or does, N.B. that the NSA isn't saying whether it still operates) domestic surveillance. Bush's surveillance involves at least one foreign participant in every conversation. Please pay attention. Facts matter.

I do not agree that Bush broke the law. I believe that the legality is in dispute in the same was as Lincoln's suspension of habeas corpus was disputed at the time. Jefferson's power to do the Louisiana Purchase was disputed. Washington's power to put down the Whiskey Rebellion was disputed. He, by the way, was the first president accused of running the office like an absolute monarch. The horror!

We've had more onerous surveillance before that's gone unattended to. In wartime FDR loved to read J. Edgar Hoover's wiretap surveillance of Congressmen and newspapermen. FDR and Lyndon Johnson secretly taped conversations in the oval office. Read history. Nixon didn't invent this stuff, not that the precedents excuse it.

Bush is a wartime president with wartime powers. The extent of those wartime powers is under dispute. I believe that better laws would clarify this matter, but I believe that Bush's opponents are more interested in getting Bush than in writing better laws.

Vince Foster? Good grief! Can we stay on the subject? Hillary's summoning of FBI files is actually more pertinent, not that we had any thoughts of going there to begin with. I'm not trying to turn this into a global indictment of Clinton, whose work in Kosovo I happen to admire, or global exoneration of Bush. But at this point I'll offer an indictment of the statesmanship of the left and the thoroughness of the self-styled "objective" MSM.

You have my permission to stop telling me what I mean, by the way.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

For a complementary take on this, see

jpe said...

Echelon did...domestic surveillance.

America listened in China and Russia. The AmThinker article is written in slippery fashion, so if you weren't paying attention, you'd fail to notice that it never directly claims that the NSA was spying on Americans.

Rather, it claims Echelon was - and this may be true, but Echelon is shorthand for the global agreement. In other words, the AmThinker convincingly argues that New Zealand, England, and Canada are spying on Americans*.

That fact, while troubling, isn't a Constitutional crisis.

I believe that the legality is in dispute in the same was as Lincoln's suspension of habeas corpus was disputed at the time.

In other words, he broke the law but you think the legitimacy of the law is questionable. (You're a priest and I'm a lawyer: you're supposed to tell me to be forthright!)

jpe said...

Poole's post says something I thought initially* (and wrote in my first comment here; then erased; then rewrote; then erased finally):

ECHELON is a system that tries to pick out keywords in the avalanche of global electronic communications. It's like trying to grab a particular drop of water out of a firehose. The domestic surveillance being discussed is target-directed.

This significantly changes the 4th Amendment calculus. A warrant, based on particularized evidence, is required for particularized searches. Echelon, by contrast, is more like a road checkpoint or a speed trap: it just checks surface info. We don't need the same kind of cause to investigate, since the government's action isn't invasive or person-specific.

* Poole, at first glance, seems insane. I don't know if his agreement with my reasoning is a good thing at all. In fact, I'd concede it may be a point against me.

Jon A. Alfred E. Michael J. Wile E. SWNID said...

Dude, I read about Echelon long before the Thinker piece. Of course it's a flawed piece. What's your source for unflawed information?

BTW, on this blog, condescension is my routine. Don't horn in on it.

So it's not a constitutional crisis if the American government enters into agreements with foreign governments to cooperate in wholesale global surveillance of electronic communications, including American domestic communications because the surveillance of Americans is technically carried out by foreigners?

So it's OK to spy on Americans without a warrant as long as you outsource it. The NSA can let foreigners do this for them and report the results to them, but they can't do it themselves. This protects American liberties and privacy. How elegant! Too bad the NSA didn't get the Indian government to do this, or the whole thing would have been cheaper too.

OK, now I understand. The republic is about to fall unless we act immediately. I'll certainly write my congressman and demand articles of impeachment. And I'll see if I can still land an autographed copy of My Life to complete my conversion. I must be careful, though, because they're also watching my library records. I don't want those jackbooted troops of the religious right on my doorstep!

For the record, I am not a priest. I'll assume for the sake of argument that you're a lawyer and not, say, a golden retriever (see famous cartoon on main blog). I'll also assume that you're not an important specialist in constitutional law, or you wouldn't have the time to respond to the likes of us on a Sunday afternoon. You'd just be gettig home from Meet the Press. But "lawyer" fits the mode of communication that you've heretofore employed, especially in your paraphrasing of our remarks in a way that distorts them, as would be done in cross-examination.

But I'll still lecture a at-least-self-styled lawyer on the nature of the law. "Broke the law" is hardly an informed charge to bring against Lincoln in regard to habeas corpus. In the opinion of his political opponents, what he did was unconstitutional. In the opinion of many of his supporters, it was entirely justified as a wartime measure. Such is the nature of constitutional government with division of powers. This is high school civics.

Per previous note, I am not a priest. I am a theologian, however, though the distinction may matter little to you. We theologians are largely happy to note all the problems of human subjectivity in things like "judgment" on the "law." This doesn't keep us from trying to do it, of course. But let's be frank about the difficulties and avoid argumentative rejoinders, in the mode of cross-examination, that assert with moral certitude that Lincoln patently broke the law in suspending habeas corpus. Some said that he did; others, that he didn't. Hung jury, I believe.

The same applies to Bush's actions. And Washington's, Jefferson's, Jackson's, FDR's, Truman's, Johnson's, Reagan's, etc.

The best law, including constitutional law, is a blunt instrument that, when it functions, prevents more evil than it causes. The worst cases make purely legal judgment at best difficult.

But history can be marvelously informative on this subject. Given the absence of references to even the most recent history (i.e. Echelon) in the hysterical charge that Bush's domestic surveillance is illegal, let alone the most relevant, it's little wonder that many are ready to wield the blunt instrument in ignorance.

Now here's your lawyerly test: who said, "The constitution is not a suicide pact"?

Jon A. Alfred E. Michael J. Wile E. SWNID said...

N.B. that it's your opinion that Echelon by nature doesn't violate the 4th amendment. What was to keep someone from interpreting it as a violation, as it involved listening to conversations in which there's a high expectation of privacy? Do we leave this up to lawyers?

That's why I say we desperately need congressional debate, not about whether "Bush broke the law" but about how best to carry out the surveillance necessary to protect the citizens of the country and at the same time uphold constitutional liberties. The debate should yield legislation that takes into account the present state of the technology and the present state of war. FISA doesn't: it's as old as my marriage and as old as the Iranian revolution, and both events have taken turns that could not have been anticipated at the time (though only the latter is relevant to the issue of surveillance).

But should the President, with wartime powers, wait around doing nothing until the debate is over? You may choose to live in a republic that operates that way, but I will vote against you. And I hope my side prevails.

Anonymous said...

From what I've seen, I'm not convinced that jpe would choose to live in a republic at all. He sounds much too "European" to go for that oh-so-five-minutes-ago political arrangement. Indeed, it appears that for him, the interpretation of the law (his interpretation) is far more important than the law itself. Hence, one must not concern oneself with the messy business of political compromise--the sort of thing that a republic is founded on--but rather on the revisionist program of reinterpreting the law to accomodate one's own political allegiances. --A word of warning here: Such an understanding of political life might sound profound at the margins, but in the public square it can lead only to anarchy.

JB in CA said...

The posting above should read "jb in ca" not "anonymous."

jpe said...

From what I've seen re: Echelon, it's certainly dicy.

You make a good point about outsourcing, but I haven't seen anything suggesting that the American gvt is circumventing warrant requirements via the program.

The only thing we know from the AmThinker that Echelon could be used for those purposes. Certainly, though, if echelon were used for those purposes, that'd be just as unacceptable as Bush's actions.

I'm a bit perplexed by your hysterical rhetoric; the republic won't fall, but neither will al-Qaeda have seized D.C. had Bush instructed the NSA to, y'know, follow the duly-passed FISA.

Finally, and nit-pickily, Bush doesn't have wartime powers. Per Hamdi, the Authorization of Military Force was limited only to military force. It wasn't a "blank check," and domestic spying won't fall within its scope (dig Youngstown).

He sounds much too "European" to go for that oh-so-five-minutes-ago political arrangement.

Yeah, me and my whole "rule of law" obsession. Tres European!

jpe said...

Indeed, it appears that for him, the interpretation of the law (his interpretation) is far more important than the law itself.

This is pretty relativist. There are right answers and wrong answers in law, and, yeah, I do think my interpretation is correct. Presumably SWNID feels his is correct, hence the disagreement (while you seem to believe "we can all be right" or some nonsense).

My belief that I'm correct, though, doesn't preclude resolution through political compromise. Like many constitutional issues, this will have to be worked out politically rather than through impeachment or litigation.

JB in CA said...

It's odd, from what I said, that you would interpret my comments as betraying the belief that we can all be right in our differing interpretations of a law. That would indeed be nonsense. What I do believe is that we (i.e., those of us who are reasoning in good faith) can all agree, at least in many instances, on the proper application of a law--assuming, of course, that the law is not abmiguous or vague or indeterminate. And this brings me to the point of my criticism. In cases where a law is ambiguous or vague or indeterminate--e.g., cases that evoke widely differing interpretations of what the law actually means, cases, i.e., like the one stimulating so many exchanges between you and SWNID--the proper response is to introduce a new and improved law to take its place, not to cling tenaciously to your favored interpretation of that law. By doing so, you are, in effect, preferring your own interpretation to the law.