H2H: Domestic Intelligence and Civil Liberties

Geof, you raise three basic issues. The first is whether a domestic intelligence agency would have less regard for constitutional rights than the FBI, the second whether adequate attention has been paid to security measures that do not involve curtailing civil liberties, and the third whether the post 9/11 restrictions on civil liberties are more serious than I believe.

On the first, you are right that an agency that has no arrest or other law enforcement powers--and that is the essence of a domestic intelligence agency that is separate from any criminal-investigation or other police body--will not worry about the exclusionary rule except in cases in which it believes the best response to a terrorist threat is prosecution (and hence referral to the FBI). On the other hand, since such an agency would have no powers of arrest, and little interest in obtaining evidence of crime, the occasions for invoking an exclusionary rule against it would be fewer. Moreover, one reason for an exclusionary rule is recognition of the heavy costs that a criminal prosecution imposes on people. A domestic intelligence agency wouldn't be in the prosecution business. And finally, the exclusionary rule has considerably eroded, as you know, and the erosion isn't going to be reversed. It is due partly to the Supreme Court's having become more conservative but partly as well to the increased efficacy of civil-rights litigation as an alternative method of enforcing the Fourth Amendment and other constitutional provisions--though I acknowledge that such litigation is unlikely to be effective against surveillance where the government refuses to disclose whose communications have been intercepted.

You are right that since terrorism is the use of violence for political ends, and since there is serious concern that extremist rhetoric by imams may encourage violence even if the rhetoric does not quite reach the level of incitement, a domestic intelligence agency would be investigating political activity, with the inevitable "chilling" effect. I cannot get excited about "chilling" the rhetoric of extremists who preach that Islamic suicide bombers go to heaven and their victims go to Hell and that it is the religious duty of every Muslim to wage holy war against the United States, Israel, and the West. But you're right that there's a history of abuse whenever a security agency interests itself in political activities.

But here it seems to me is the clincher in favor of a domestic intelligence agency. The FBI's able director, Robert Mueller, does not forswear engaging in the tactics that would be used by such an agency, including surveillance of radical imams. On the contrary, he claims that the FBI is engaging in those very tactics; that the reason we don't need a counterpart to MI5 or the Canadian Security Intelligence Service is that we have it already--in the "National Security Branch" of the FBI, an amalgam of the Bureau's intelligence, counterterrorism, and counterintelligence divisions. You may think such tactics inappropriate, but that is separate from the question whether, if they are to be used because of the terrorist threat, they should be used by the FBI or by a new agency. If as you suggest the FBI would be more squeamish in their use because of its preoccupation with prosecution and hence the exclusionary rule than a separate domestic intelligence agency would be, then that is another way of saying that the FBI will fail in its endeavor to duplicate the methods used by domestic intelligence agencies in the countries (virtually all but the United States) that have them. Those of us who think such tactics essential to combat the threat of terrorism want them to be utilized more efficiently than the FBI is likely to be able to do. It is not a compelling argument against a domestic intelligence agency that it would be more efficient than the FBI. And note that it would be a less intimidating body because it would not have the "badge and gun" culture of the FBI.

On the second issue, that of alternative security measures, I deliberately lumped together cost (and efficacy) and politics. There are two grounds for doubting whether, for example, inspecting all incoming cargoes for possible lethal contents is an alternative to, say, a domestic intelligence agency. The first ground of doubt is cost, and also whether an inspection program would be effective, given methods for shielding lethal cargoes from inspectors. The second, however, is that it may be politically impossible to obtain such a program. The political opposition may be base, selfish, corruptly motivated, short-sighted. But if it is overwhelming, that is a fact that has to be taken into account in deciding on whether to adopt an alternative measures that curtails civil liberties. Maybe civil liberties simply don't have the political support that shippers have. That would be a brute fact that the designer of an effective set of counterterrorist measures could not ignore.

I have stressed in my writings on intelligence its limitation as a protection against terrorist attacks. I therefore strongly favor hardening and response measures as alternative means of protection. We cannot hope to detect all surprise attacks in advance.

On the last issue, that of the gravity of the inroads made by the post-9/11 security measures into civil liberties, my conception of suspending habeas corpus--which I agree that only Congress can do lawfully and therefore that the Supreme Court's decision in Hamdi was sound--is to give the executive branch carte blanche so far as detention of terrorist suspects or other enemy suspects is concerned; it would have no enforceable obligation to provide even the rudiments of due process in military courts--it wouldn't have to create military courts. But I do not agree that the NSA surveillance is a severe curtailment of civil liberties. There is a big difference between snooping and imprisoning. I don't think people are as ignorant as you suppose of the amount of privacy that they are willingly giving up in order to enjoy the benefits of digitization. I think most people if fully informed would actually prefer a government agency to be monitoring their emails and phone calls for national security purposes than their employer to be monitoring their emails and phone calls for the employer's purposes, because the government agency's interest is much more limited.

Now you may respond that I am utterly naive in supposing that the NSA will limit its snooping to communications that its data-mining programs flag as being suspect. But we have such a leak-prone government that I think it much less likely than in the 1960s and early 1970s, before the Church and Pike hearings, that abuses of electronic surveillance can be concealed. But I have no objection to, and indeed favor, creating strong safeguards against such abuses. Congress wants more oversight; civil libertarians want more warrants. Both are mistaken, Congress because its oversight is intermittent and highly politicized, civil libertarians because warrants are designed for situations in which the government has a focused suspicion (probable cause). Warrants are fine for the monitoring of known or suspected terrorists; they are unusable for discovering who the terrorists are. That is the essential need at the moment, and it requires a much wider net with a much finer mesh.

We should be imaginative about alternative safeguards, such as (1) requiring that all interceptions that involve an intelligence officer actually reading or listening to the contents be reported periodically to an independent monitoring body (some counterpart to the General Accountability Office) together with the reason for and results of the interception; and (2) forbidding under stiff criminal penalties any use of intercepted communications for any purpose other than national security, including enforcement of ordinary criminal laws. So snooping would lead to imprisoning only if the interception produced or led to evidence of criminal terrorist activity.

No doubt these safeguards would in operation be imperfect, like everything in U.S. government. But the need is to balance privacy interests against national security. The recently foiled Canadian plot should remind us that our national security is endangered, justifying electronic surveillance designed to identify terrorists, not merely monitor their activities once they have been identified by other means.

Let me finally take this opportunity to correct an embarrassing mistake in my first posting: the subtitle of my new book Not a Suicide Pact is The Constitution in a Time of National Emergency, not in a Time of National Security--would this were a time in which we could be justified in feeling that the nation was secure.

Comments

[Kimball Corson]

Your three paragraphs before your last one go a long way toward ameliorating the concerns of many in regard to protection of our civil liberties. I suggested something similar in one of my posts to Geof's last comment. I repeat the other here because I think it is serious continuing practical problem: does this Republican, rubber-stamp Congress have the intellectual integrity 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. Its hallmark is stalling and breaching promises to proceed. It would too likely do what the Administration wants, which is largely 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 until good sense prevails in Congress.

[Frederick Hamilton]

Kimball,

Your assessment of the ability of Congress to devise a framework for a Domestic Intelligence Agency is wrong. Do Democrats and Republicans view many issues quite differently? Sure. Would it be possible to develop a new cabinet level agency and get it through the U.S. Senate without very significant and important work from the minority Democrats? Of course not.

I am not sure your analysis of what good sense is makes our representative government in Washington incapable of doing the right thing by the American people regarding the development of a new agency with the mission of helping to keep us safe with a minimum of loss of our freedom and liberty.

Those crazies you disdain in the present administration whether you want to give them any credit or not have I think done a nice job of keeping us from experiencing a second 9/11. I suspect you feel strongly that Kerry, et al would be much more strong and determined than Bush, et al in defending the country. That's fine. That's politics. But let's give a little credit to Bush, et al. So far, their Monday morning quarterbacking analysis of homeland security looks pretty good.

Again though. Since only 41 Senators are required to kill a new Domestic Intelligence Agency, I take it you also don't have much faith in Kerry, Levin, Biden, Kennedy, et al? Correct?

[Kimball Corson]

P.S. You write so many books, your titling recall error is easily forgivable and you shouldn't be embarrassed.

[Kimball Corson]

Frederick, the only interesting and creative ideas I see on how to resolve the conflicts between civil rights and our need for surveillance are largely on this website, where everyone or almost everyone recognizes the difficulties and tries to address them. I see nothing or next to it from members of this Congress in those regards. Dominant Republican efforts in and out of Congress to ignore, or worse hide, the problems, propose claims of treason against the disclosing press and quash sensible oversight are truly more than disturbing.

[Kimball Corson]

Frederick writes: “. . .Those crazies you disdain in the present administration whether you want to give them any credit or not have I think done a nice job of keeping us from experiencing a second 9/11. I suspect you feel strongly that Kerry, et al would be much more strong and determined than Bush, et al in defending the country. . ."

I respond: I don't like Kerry either. He can't keep his positions straight and does not know what he thinks until he hears himself speak. Even then, there are problems.

Also, I am not sure this Administration has prevented another 9/11. We do not know that. Bush would like us to believe it, but I hear nothing concrete in those regards or, more cogently, that surveillance violative of our Constitutional rights did the trick. I suspect that if there was a howling success in those regards, the need for secrecy would yield to the need to crow about it by this Administration.

[David]

Well, Kimball, I for one am sure that there has been no attack in the U.S. in the almost five years following September 11, despite the dire predictions immediately following that horrendous event. For that, I thank God and the Bush Administration.

[Kimball Corson]

The whole idea of terrorism is to do as little damage as necessary to scare us into taking away our own rights and acting against ourselves, our institutions and our own interests. Arab terrorism is very successful. American are quite terrorized and we brought this program of terrorism on ourselves for invading and occupying the Arab peninsula, just as Osama bin Laden has been saying – but no one listens or wants to. Sometimes I think we are not too bright.

[David]

Kinmball-

Sounds like you buy Bin Laden's propaganda that it is all the fault of the U.S. If so, then how do you explain jihadi attacks in Thailand, Phillipines, India, Bangladesh, Pakistan, Saudi Arabia, Lebanon, Egypt. . . . . .(the list goes on and on)?

Please give me some factual proof of the propositions in your last comment.

[Kimball Corson]

I cannot rationalize all jihadi such attacks within that framework, but I focused instead on those against Americans on American soil. It would be a very considerable gain if we couldd eliminate those. Too, were Arabs militarily occupying the USA, trying to install a theorcratic form of government to replace our despised democracy, would not we be a bit roiled and probably trying to attack their homelands in the Middle East?

Too be sure there are risks of dealing with bin Laden, but there are risks in our present course too and we need to get off the Arab peninsula soon or later. The down sides seem tolerable, including the fact bin Laden does not control all radical Arab
jihadists. Few things are perfect.

[David]

Kimball--

I'm sure that Kim Jong Il would like the U.S. to get out of South Korea, but since he is not the government of South Korea, he has no right to tell us to leave.

Same with Al Qaida. And why do you suppose it is that they say they want us out of the Middle East?

I don't think our withdrawal from the Middle East would do any good and would probably do a great deal of harm. Look at Israel--they withdrew from Gaza and attacks immediately increased, not decreased. They withdrew from southern Lebanon and attacks increased from there.

You are looking for a rational reaction from these jihadis (at least a rational reaaction from a Western point of view). I do not believe they react in that manner. Even if their propaganda says they will.

[Kimball Corson]

I think al Queda and other fanatics want us out of the Middle East so they have their little Muslim theocracies or at least better fight among themselves on whether they want some secular variation on those themes. Fanatical Muslims do an excellent job of killing a much higher percentage of other Muslims than of us. The attrition ratio is massively on our side. The fanatics try to intimidate their brethren, much more than us. Let us leave them in their home lands to their suicidal efforts.

I think Kim Jong II of North Korea is absolutely nuts, paranoid and terrified of China, a US backed South Korea and of the US directly with our silly talk of the "Axis of Evil." There are no checks or balances in North Korean government to counter Kim’s worst aspects, which we all too often see. I also believe he is playing the nuclear card for an ever-bigger care package, mostly of potato chips to munch on as he watches Hollywood movies.