Richard Posner's proposal for a CT Circuit prompted me to say the following in substance:
Given a choice between countering terror and protecting civil liberties, most courts in the US will protect civil liberties. That is because most judges in the US don't know much about countering terror, and judges tend to talk what they know. He suggests that what we need is a Counterterrorism Court.
It is clear that our criminal courts and FBI are unsuited to properly investigate and prosecute possible domestic terrorists.
It seems to me that it is most important to be proactive in this manner before we start writing law under duress. The import of this discussion is supposed to be, how do we avoid bastardization of law and misapplication of war powers in the wake of domestic terror attacks. If you don't like the Patriot Act, then the answer is to come up with something better.
There is no question, considering COINTELPRO that domestic radicals and subversives can be infiltrated. But it's rather common knowledge that the FBI was exceeding its mandate in that regard. So too Posner asserts that their charter did not allow them to exploit the potential of their infiltration of the Florida cell wrt bombing the Sears Tower. Once they infiltrate and develop evidence that can result in a criminal prosecution, they're done. It isn't within their ability or charter to connect dots back to kingpin organizations.
We shut down the mob with RICO. We don't have such tools to deal with domestic terror. We have the capacity but not the organization.
When the British are cited for having London as the most surveilled city in the world with their 'Ring of Steel', people often forget that their MI5 is a domestic spying organization. MI5 of course has the experience as do Londoners of dealing with car bombs in the city on a regular basis during the decades long conflict with the Irish Republican Army. We have no such experience.
There are many folks who argue reasonably, among the many more who do not, that the Executive branch has gotten out of hand. As well, there is a theory that the GWOT should be a 'police action'. So Posner's suggestion should be welcome to those who are interested in total victory as well as those who continue to sweat bullets over the Bush Administration's troubles over FISA warrants.
In the past week, Congress has, according to the anti-war crowd, caved in on new legislation surrounding the matters about warrantless wiretaps in pursuit of terror investigations. This is primarily because, as every one of their arguments I have seen plainly state, that crowd fears political reprisals. All of the FISA squawkers keep thinking that Bush is just a heartbeat away from Nixonian dirty tricks. I can understand a bit of cynicism, but this has descended into paranoia. There is one single significant civil liberties violation that has taken place under Ashcroft and Gonzales, and that is the Hamdan case which was eventually, if not promptly, checked by the Supreme Court. We have entered a period in which the President isn't even allowed to fire at will employees without raising a cloud of suspicion.
As an aside, I have not been following the inquisition of Gonzales, but it occurs to me that without the benefit of a doubt, there are very few people who could stand up to the level of harassment he has been getting at the hands of Congress. I worry about having people in office who are so calculating that they could. Then again, I think Janet Reno accorded herself with an order of magnitude more finesse than Gonzales, and I trusted her.
But what's clear again is that the Congress is ineffective in doing anything constructive in law that assists in victory over Al Qaeda on an independent basis. Instead they have spent all of their time countering executive orders and frameworks of dealing with matters like the definitions of enemy combatants, advanced interrogation techniques, funding of armor for the troops, the legality of GTMO, the Plame investigation and of course FISA, all of which they have lost.
But the problem with all of this SIGINT interception is my guess about how the process might actually work. To be in compliance with the law, which seems insufficient, and to use technology properly which is non-trivial is something that seems very difficult, inherently difficult to know. For example, the difference between the word 'concerning' and 'direct' as Kevin Drum notes, can make a big difference in the scope of data to be processed, whether or not one is alarmed at potential political hijinks.
From my observations of the technical aspects of this job, I understand that the more data that is selected, the less effective data mining techniques will be. My guess is that the NSA have more data than they effectively deal with and that they are archiving it until somebody comes up with a better mousetrap. If I were a betting man, I'd look at something like Hbase. Anyway, I'd be very interested to know about the methodology and that makes a difference.
Lets say, for example, you have the capacity to pull everything during a period of high chatter. That would be easier to do than to maintain a set of filters at the distributed points in your collection system. On this principle it works a little like your Google Mail. You get all the spam and you are able to hold it in your possession until you physically clear it. This gives you the opportunity to review all of that stuff you believe has a high probability of being spam in case some of it is not. If your best-guess filters toss out all spam at your collection points then you increase your number of unknown unknowns. Without filtering at collection points you can possess a large pool of data, and yet without investigating its contents, process it with a smart set of tags. You can then connect some dots based on the smart tagging and reduce your potential set of data to a more reasonable size. Again this is like labeling your Google Mail by doing a search on the To:, From: and Date: fields but not on the content.
Now to do voice recognition on the content, I think that would essentially require a warrant, which is different from wiretaps, because wiretaps aren't discrete. A telephone conversation may or may not be 'loaded' with actionable information. In an ordinary telephone wiretap you can only listen for and use stuff surrounding key words and I believe you can only possess the key sections of the conversation. Surely the FISA and all 'wiretap' laws are the basis upon which SIGINT must conform. These would be easy to circumvent as phone caller. I could play a game of treasure hunt, setting up times and phone numbers that send parts of a complete message in a series of phone calls. And of course as a cryptanalyst at NSA I couldn't know this was being done without access to greater sets of data.
Again, I'm only scratching the surface with my conjecture, but I know a great deal about how the changing of one word in a system requirement alters the way the technology is applied to a problem, and the technologist always knows where the holes are before the people writing the specs do. By the time rigorous protocols for users of the system are in place, any number of realities may have changed. So my sympathies are with the DBAs of course - the tech people who have to maintain these monstrously huge repositories (hmm, and suddenly I realized why Lee, my good buddy is so jazzed about the random access voicemail downloads he gets pushed to his iPhone), who know where they might look but are restricted from looking.
But SIGINT is only a partial solution as Posner and now I understand. The greater problem is the lack of judges America has with experience in dealing with these kinds of cases. Surely there are more than three judges in this country who can assist in the GWOT. It doesn't take a genius to figure out that the FISA approval process is a bottleneck, whether it's retroactive or not. The more focus that the political opposition gives to this FISA stuff, the more we are vulnerable.
The executive and activists on their behalf wouldn't need to bear such paranoid or well-motivated scrutiny if the other branches of government had credible victories of their own.
Recent Comments