What's the Big Secret?

Remarks from the Fray:

How quickly we forget, it seems, that the executive, legislative, and executive are all part of the 'government.' What we have here is an argument not about what the government can and can't do, but who in the government can do it. Various people favor various branches, in large part, it seems, because they believe that certain branches share biases they trust and others share biases they don't trust.

All in all, though, a sensible person could question the independence of a bunch of ex-lawyers (judges) and a bunch of ex-lawyers (legislators) - in fact, it is mostly the executive where some variety enters into it; whether we trust them or not is yet another story. In the end, you'd think that judges, cops and lawmakers tend to be in the same camp vis a vis the freedoms of the people.

So, why bother with all this judicial review? Basically to involve more people and slow things down. But do we really want to just gum up the works in fighting terrorism, with the hope that a less powerful government will treat us better? Frankly, if we want a less powerful government, we should probably cut all sorts of mandates, privileges, and so on - eliminate state charity, subsidies, federal regulation of intrastate commerce, etc - and leave the NSA and CIA to do their work fighting terrorism, at least for the moment. The long arm of government into our personal lives starts with the pocketbook, health care, taxes, etc and ends with law enforcement, not the other way around.

--BenK

(To reply, click here.)

Imagine that the government is clever enough that it can come up with a filter that has a 99.99% chance of tagging a non-terrorist communication as non-terrorist, and a 99.99% chance of tagging a terrorist-related communication as terrorist. I think we'd all be impressed. Further guess that as many as 1 out of 10,000 (0.01%) of all the communications under surveillance are terrorist-related.

If you do the math, out of 100,000,000 communications, you'll have 10,000 genuine terrorist communications, 9999 of which you'll correctly tag as terrorist (the other one will slip through the cracks). Of the 99,990,000 non-terrorist communications, you'll correctly tag 99,980,001 of them as non-terrorist, leaving 9999 as false positives. So because terrorist communications are rare, even this very good filter will produce a false positive for every true positive.

And if that 1 out of 10,000 calls is in fact an overestimate, the number of false positives will outnumber the true positives. If only 1 out of 100,000 calls were terrorist-related, then the false positives would outnumber the true positives by about 10 to 1.

And that's ignoring the manpower issue of who's going to drill down into those 19,998 communications tagged as terrorist by the filter, half of which will be a frustrating waste of time.

--StatNerd

(To reply, click here.)

David Kriss says that there is widespread agreement that it is okay for the U.S. government to intercept "foreign-to-foreign" communications without any oversight or accountability. Why is it that Americans, even those who are strong advocates for the right to privacy, can dismiss the privacy expectations of non-Americans without a thought?

Not all foreigners are terrorists hiding out in mountain caverns. Canada is your nearest neighbour, largest trading partner, and a strong friend and ally. When your government closed all U.S. airports on September 11, hundreds of aircraft were diverted to Canada. At the time, no-one knew that there were only four planes involved in the attack, and for all we knew we could have been putting ourselves in harm's way. The authorities in Canada agreed to admit these aircraft into our airspace anyway, and hundreds of Canadian families took stranded American travellers into their homes. Our soldiers have been fighting in Afghanistan since shortly after the invasion, and are suffering casualties at a higher rate than any other forces, including your own.

The NSA has the capacity to monitor the communications of our security services, government officials, businesses, and private individuals. The U.S. Congress has given them free reign to do so, and there is "widespread agreement", among Americans anyway, that this is "appropriate". Why?

--ovation

(To reply, click here.)

What you're doing is a legal analysis of how these programs comport with the jurisprudence and legislation of the past (FISA) and also more recent legislation. This analysis occurs in a relative vacuum.'

It's my understanding that during WWII our security agencies took substantial latitude with privacy protections. If so, were these legal then given wartime conditions? Or was there legislation, since rescinded, that legalized these actions? Or would subsequent jurisprudence make these actions questionable?

Rights cannot be absolute but must be the result of a weighing of threat vs the value of privacy. It would seem obvious that in wartime this balance shifts. Obviously this isn't WWII. But its also not the Cold War. In fact its easy to argue, from a homeland security point of view this situation is more dire than either WWII or the Cold War. Our opponents are indelibly organized to try to kill us in large numbers!!!! They already have.

Then we had other means, more appropriate to the circumstances (armies, planes) to protect us. Now surveillance has gone from a useful auxiliary activity to a primary weapon. So the balance of threat vs. privacy rationally must shift against privacy.

To do so requires action, some of it secret, necessarily on the part of the executive. Such considerations seemingly play no part in your analysis, yet they seem to me to be critical. Obviously in such circumstances we end up relying on the discretion of the executive more than we're used to. Yes there is a greater potential for abuse. But there is a check still.

If discretion is abused in a functional sense that hurts innocent people there will be victims with a cause of action. So far the surveillance programs seem to be victimless "crimes". Or maybe the administration is in fact being reasonable with the program.

--Breaker

(To reply, click here.)

(9/2)

• Froomkin: How to Get Away With Torture
• Milbank: (Not an) Impeachment Hearing
• Achenblog: My Bias Against Media Bias
• Krauthammer: Maliki Votes for Obama