One of the implications left hanging in the discussion of habeas corpus and a reasonable right to security in my proposal of a domestic intelligence organization similar in charter to MI5 is this, the regularization of surveillance.
The basic problem with injunctions against surveying known innocents and protecting those same innocents from local threats is that the latter requires the former. Let us take an analogy of toddlers at the playground.
Most of us are familiar with the dreaded parental duty of taking kids to the park. It is a dreaded duty because it requires that parents generate a new set of skills, which is to be able to see when and if your kids are getting into trouble without obsessing and driving yourself or the kids crazy in the process. I have three kids which are very close in age and so I have been tested to the limit. You take them to the playground and let them go and then you go sit on a bench and try to get some peace and quiet. Every minute or so, you look up to find out if your kid is still doing the relatively safe thing they were doing a minute ago or if they've wandered towards the edge of danger. This is surveillance.
As a part of this surveillance, you're also watching other people's kids who may be playing by other sets of rules. For example, if your kids are not permitted climb trees or are unskilled at the task, you have to watch out for kids who do, as they will seduce your kids into this dangerous fun. Two of my kids are adept, one is a little slower. I have watched other parents go Defcon 1 when they find my kids have treed their kids. I know my kids don't curse, so I watch out for kids who do. Same thing with throwing sand, losing shoes, etc etc. A good parent knows how diligent to be and when to intervene, when to panic, when their instructions will be followed or defied. A bad parent leaves their kids unsupervised. Then again, this depends upon the threat level. Are the swings full? Is there a teenager spinning the merry-go-round at 100 RPM? Are kids going up the slide the wrong way? Are you the only parent? The dynamism of this situation is extraordinary. Just ask any parent.
Sooner or later you get good, and your kids grow their own sense of security. But that only happens because you have a big fat history of surveillance to know the little things that end up being big things. Soon you can spot a trouble-maker kid in 20 seconds.
The problem with America's domestic surveillance is that we don't really have any, and because we want some, we are suddenly forced into a situation rather like having your cousin Pookie watch over the kids for you in the park. He doesn't have the skills. If you want to understand when abnormal activity is happening over a communications medium, you have to know what normal activity is. In other words unless the watchdogs have established some kind of baseline as to what non-terrorist activity looks like over our nation's telecommunications networks, we are hard-pressed to find out what terrorist activity looks like. It is a fundamental conundrum that must be resolved.
It seems to me that the solution is to develop a protocol for our own MI5 that allows them to look and holds their information in escrow of some sort. The problem isn't what the Bush Administration is doing, it's that too many people simply don't trust them to do what it is they do. We've had a series of FISA reforms since this problem broke, and the Administration has almost always gotten their way each time. That's because nobody in Congress, rightly, wants to be held responsible for foot-dragging on the connect-the-dots enterprise. Quite frankly, I don't like the broken firewalls and the hugeness of Homeland Security. So I say create something relatively new and let it do what needs to be done.