H2H: Domestic Intelligence Agencies, the Internet, and NSA Surveillance

It's true, Dick,  that I have no objection in principle to the creation of a professional domestic intelligence agency. For me, the central issue is whether, to what extent, and in what circumstances the United States should engage in domestic intelligence gathering. As I understand it, the distinction between an organization like the FBI and a domestic intelligence agency is that the FBI is dedicated primarily to law enforcement whereas a domestic intelligence agency would be dedicated to gathering information in order to prevent terrorist attacks. As you make clear in Uncertain Shield, because the FBI is geared to law enforcement, it has never developed the skills necessary for effective domestic intelligence and its incentive structures is deeply rooted in solving rather than preventing criminal acts. To the extent an effective program of domestic intelligence can enhance our ability to prevent terrorist attacks without undermining civil liberties, I'm persuaded that a professional agency dedicated to that end has advantages over the FBI.

The key question is whether such an agency would pose a greater danger to civil liberties. There are several reasons why this might be so. First, because the FBI is focused on criminal law enforcement it is quite responsive to the primary mechanisms we use to discourage violations of civil liberties -- most notably, the exclusion from criminal trials of evidence that has been obtained unlawfully. A domestic intelligence agency that is not concerned with criminal law enforcement will be largely indifferent to the exclusion from trials of unlawfully obtained evidence. What, then, will cause them to obey the law? We can always hope that professionalism will do the trick, but experience teaches otherwise. Indeed, that's why we needed invent the device of exclusion in the first place. A good illustration of this phenomenon is the Bush administration's indifference to the probable illegality of the NSA surveillance program. Thus, if we are to move towards the idea of a domestic intelligence agency in the United States, we first need to determine whether there are credible mechanisms to enforce respect for constitutional limitations. I don't believe this is impossible, but it's a serious challenge.

Another reason why I have concerns about a professional domestic intelligence agency is the risk of abuse. At least two obvious forms of abuse worry me. First, the agency may find it difficult to maintain its focus on preventing terrorism, rather than investigating, for example, political activity. The two are not unrelated because radical politics and feared violence sometimes go hand in hand, and the very concept of "radical" is often in the eye of the beholder. A domestic intelligence agency can easily become a "secret police," and it won't do to blink that reality. Second, a domestic intelligence agency that gathers huge amounts of information and stores it for future reference can easily chill perfectly lawful and, indeed, constitutionally protected behavior unless there are strong and credible safeguards in place. These concerns don't cause me to reject out-of-hand either the legitimate need for domestic intelligence or the legitimate need for a domestic intelligence agency. Certainly, at a time in history when a small group of individuals has the capacity to kill thousands, the need for effective prevention is real. But I would not support the creation of such an agency unless and until I was satisfied that such safeguards have been put in place. Interestingly, I think we pretty much agree on all this,even though we disagree on precisely what surveillance techniques violate civil liberties.

Turning to another issue, I didn't mean to suggest in my initial post that "restricting civil liberties . . . should not be considered until all other means of protecting against such attacks have been exhausted." If that were the case then, as a practical matter, civil liberties could never be restricted. That is not my position. What I meant to suggest is that we should step back from the civil liberties v. nation security question to consider seriously the other ways in which we might protect our security. Too often, we carelessly leap to the assumption that the proper solution is to intern Japanese-Americans or jail the president's critics. It may be emotionally satisfying and politically popular to take such actions, but that doesn't mean they're either effective or wise. I want to encourage us to push back against expedient demands to restrict civil liberties as a first resort. Moreover, I don't understand why you are so quick to assume that the alternatives, unlike restrictions of civil liberties, are "too costly," "politically infeasible," or "not in the cards." If we erect a strong presumption against restricting civil liberties, those other approaches may turn out not to be "too costly," "politically infeasible," and "not in the cards."

You say, Dick, that except for "the denial of habeas corpus to U.S. citizens arrested in this country on suspicion of terrorist activity," the "other post 9/11 curtailments are small beer." We agree on two points. First, what you call "the denial of habeas corpus to U.S. citizens" during the war on terrorism is a very bad business. But what has happened is actually much worse than the mere denial of habeas corpus. We should be clear on just what the Bush administration has actually done and claimed the constitutional authority to do. Bush has claimed that as "commander in chief" he has the power to order the seizure of American citizens on American soil and to order their indefinite and incommunicado detention at a military brig without notifying anyone that they have been detained and without giving them any access to a lawyer or to a court of law. This goes way beyond suspending the writ of habeas corpus (which itself would be unconstitutional in these circumstances), which does not involve incommunicado or indefinite detention, does not deny the detainee access to a lawyer, and does not deny the detainee a hearing before at least a military tribunal. Bush's contention (rejected, as you note, by the Supreme Court in Hamdi) may be the most extraordinary claim of inherent executive authority in the history of the United States. This is important because it tells us something about the belief structure of the Bush administration.

Second, we agree that, compared to most other wartime situations, the restrictions of civil liberties during the war on terrorism (apart from the detention policy noted above) have been relatively modest. We have not seen widespread suspensions of habeas corpus (unlike the Civil War), criminal prosecutions for criticizing the government (unlike World War I), or internment of large numbers of American citizens (unlike World War II). This is testament to the evolution (however tentative) of American respect for civil liberties.

On the other hand, I am much more troubled than you about the Bush's decision secret authorization NSA surveillance of American citizens who communicate with persons abroad. I don't think it's "small beer" that this program almost certainly violates FISA, and I think it's a mistake to treat the illegality so casually. In my judgment, this is another example of the willingness of this administration to violate the law when it thinks it can get away with it by keeping its actions secret. This should be a matter of genuine concern.

Moreover, we disagree about the seriousness of the NSA program in terms of privacy. You argue that Americans have made clear by their behavior that they don't care about their privacy on the Internet because they are indifferent to the fact that commercial vendors and other private entities have access their emails, etc. I think Americans (a) don't appreciate the extent to which the Internet is porous and (b) distinguish between private entities and government spies. Just as they demanded legislation prohibiting private wiretapping once they came to understand the serious of that conduct, so too will they demand legislation protecting their privacy on the Internet even from private entities once they come to understand their vulnerability. What we see at the moment is not an indifference to privacy but an ignorance about the extent to which it is unprotected. By the way, is it your view that the government should be able to read all emails and to tap all telephone calls in order to find the occasional terrorist?

Comments

[Frederick Hamilton]

Professor Stone,

It would appear that Judge Posner and you are pretty much on the same page with a domestic intelligence agency. I suspect the same page the vast majority of Americans are on. We citizens deserve to have a federal government that protects us within the context of the threats we currently are exposed to. It makes no sense to pretend there aren't terrorists within this country that would like to kill as many of us as they can and as brutally as they can. I can't imagine the Congress setting up a domestic intelligence agency and not putting in place the necessary language and checks to insure our freedom and liberty as Americans.

I do take issue with your assessment of the NSA intercepts of foreign calls. If anything turns out to be unconstitutional, it will likely be the FISA law, not spying on international terrorists with whom we are at war. My review of all the arguments on both sides of this issue gives the nod to those constitutional arguments that FISA cannot trump the Presidents ability to catch, apprehend or kill international terrorists we are at war with and who want to kill you and I at any and all times. Judge Posner is correct. The Constitution is not a suicide pact and the authority to spy on the enemy is not subject to FISA. I understand the FISA court has said as much.

[Kimball Corson]

Why could not an independent FISA-like court preapprove, in secret, of course, any search algorithm to be used, have also a collateral magistrative investigatory GAO-like arm or division to insure proper application of the algorithm and use of the information obtained, and additionally, the legal power to publicly disclose any improper use of any information obtained and any improper and unapproved algorithm variations. Combine public disclose with a cause of action by those whose rights have been violated against those individuals violating them and Administration violating them and this combination of sanctions can come to take the place of the exclusionary rule as an enforcement mechanism. Executive privilege in these quarters would have to be precluded by law, but a system like this might work to serve the interests of all.

[Kimball Corson]

One very serious problem with what I suggest is does this Republican, rubber-stamp Congress have the intellectual integrity and fortitude to act quickly and responsibly in this quarter. I seriously doubt it. This Congress cannot even complete its investigations out of political fear of what it might learn. It hallmark is stalling and breaching promises to proceed. It would too likely do what the Administration wants, which is to be left alone to do what it wants without any interference. With such irresponsibility all around, we should be loath to give up much at all in the way of our civil rights.

[GARY]

Your statement that the FBI "has never developed the skills necessary for effective domestic intelligence" is simply wrong.

Many with a sense of history remember the terror imposed on the African American population by the KKK. Do you rember the KKK lynched people, burned a school bus, and blew up a church in Birmingham killing kids at choir practice?

Rember the green bombs? The KKK planted green bombs in another Birmingham church. Because of its intelligence gathering ability, the FBI discovered and disarmed the bombs saving numerous lives.

At that time the most senior and best FBI agents were assigned to domestic intelligence. The Soviet Union was in fact a threat. Most of what they did is probably still classified, but rest assured they did a great job.

In the town where I live there were once 4 FBI agents assigned to intelligence gathering - KKKK. Now there are no FBI agents assigned here. No informed person can doubt that the FBI intelligence gathering abilities had a lot to do with making America a better place for Black folks to live.

Maybe of late the FBI has not done much in the way of intelligence gathering. If they had, we should not know about it. But at least have the decency to acknowledge the excellent work of hundreds of skilled dedicated FBI agent who risked their lives so that you can live in America, rather than dumping on them

Gary

[Reader]

Prof. Stone:

Thanks for setting a good example. These are very touchy, inherently contentious issues, and there aren't many out there right now who are addressing them without falling into either personal invective or irony on the one hand, or empty "objectivity" or "balancing" on the other. I really appreciate your using your leadership position so responsibly.

A Reader

[New York Document Scanning]

I don't see any reason why law enforcement or domestic intelliange gathering agencies should be free of the burden of seeking a search warrant to discourage violations of civil liberties.