The Judiciary and Foreign Surveillance

I wanted to put up a post on the FISA issue. I actually believe that the intelligence service should operate under third party oversight. However, I also agree with Attorney General Alberto Gonzales that the Foreign Intelligence Surveillance Act of 1978 is set up in ways that will undermine our nation in times of need.

I am writing this in rebuttal to the article Gonzales Warns and Scorns "unqualified" Judiciary on the blog Deseret Spectacle. The Deseret Spectacle article has a few really big problems. It starts with some blatant misunderstanding of judicial history. It says: “The Judicial branch doesn't get to decide what laws are written, determine foreign policy, or conduct military operations.”

This statement really isn’t true. The American legal system is largely a continuation of the common law tradition. The common law tradition looks beyond simple written laws. It balances into the mix the ideals of the day with historical precedence. In European history, you often found courts evolving independently from the governments. Many jurists of the common law tradition, as I understand, held that there was a natural law. They saw their work as the process of uncovering this natural law.

While Americans tend to thinks of courts as centers of reason and balance. Courts have a long history of acting independently, and sometimes going bizarre. The Spanish Inquisition, The Salem Witch Trials, la terreur, and the Stasi all have elements of courts gone wild.

Yes, the legislature passes laws. The courts, however, don’t simply read the letter of the law. When new laws arrive in the court system, they seem to get morphed into the existing system of precedents. The result of this is that there is generally a gap between the way a law is written in Congress and the way that it gets implemented in court. This is probably for the better since a little legislating from the bench helps society focus on the intent of the law while avoiding the consequence of poorly written laws.

In specialty courts like FISA (where there is a not a long history of precedence), you will find that the court starts establishing its own precedents. These precedents essentially become the law. If you establish a court to oversee an entity, that court will end up making the precedents that control the entity. In the case of FISA, the FISA Court essentially writes the law in the form of its precedents.

The problem here is that the precedents set in times of peace will create too rigid of a structure for times of war.

FISA was established in 1978. FISA is suspended for the first year of a war; so it was not in effect during Desert Storm which did not take a full year to complete. Essentially what has happened is that FISA went through 20 years of peace, and seriously broke down during its first challenge.


Hmmm, how to put this in a understandable way: During peace time, FISA might set up a series of precedents to handle standard issues like the surveillance of undocumented immigrants. Imagine that FISA has twenty years of precedents on protecting the rights of undocumented workers.

Now, imagine an army invading Florida. Common sense dictates that, we should try to find out what the invading army is up to and stop it. The FISA court, however, would have a big pile of precedents designed to handle other problems. They would start deliberations on the surveillance of the invading army with the statement: “Okay, a large number of undocumented immigrants landed in Tampa. Do you have probably cause that these undocumented immigrants have committed or intend to commit a crime?”

While the court thrashes on the difference between undocumented immigrants and an invading army, the invaders manage to conquer the state. Not good.

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The FISA Court failed on its first real trial. However, the Deseret Spectacle asserts that the United States has had a 200 year history where a legislative, executive and court system worked in harmony during wars and peace. This statement is ludicrous. Paul Revere did not have a warrant to snoop on the British before his famous ride. In every single war, the executive power pretty much fought without excessive interference of either the courts of legislature.

The Deseret Spectacle tries to claim that Bush Administration’s use of foreign intelligence in the War on Terror is somehow unconstitutional.

The Constitution of the United States actually does give the executive a largely open hand in dealing with foreign surveillance. The founders of the US realized that Foreign Affairs is often a matter of political entities making feints and counter feints.

The founders had no intention of creating a completely rigid government. They created a government structure with the ability to bend as political needs dictated. In times of peace, the legislature and courts would have greater sway than in times of war when more influence would move toward the executive. The Bush government is actually behaving the way that the Constitution intended.

(COUNTER NOTE: The Constitution allows for a strong executive in regards to foreign surveillance. However, the document would also allow legislative or court oversight. The Constitution does not require FISA Court overview of foreign surveillance. It does preclude it either.)

The Deseret Spectacle claims that we went 200 years where our foreign policy was this idealized balance of the legislature passing laws, the administration administering the resolve of the legislature and the judicial branch keeping it legal.

The truth is that our little struggling democracy has been protected by an executive that has slugged it out with some of the worst kings, totalitarian ideologies, and dictators in history. It’s done this by matching foreign threats as needed and by staying ahead of the technology curve. The founder’s model was that the three branch government would protect us from our government while the strong executive protected the nation from the world.

The model worked remarkably well up until Richard Nixon snooped on his domestic enemies then tried to claim traditional executive authority to justify his actions. Nixon was a bad boy who got robbing cookies.

In the fallout of the Nixon fiasco, we recognized the need for a third party to monitor surveillance activities of the executive branch. Since the 3 branch system had been working well on the domestic side, it seemed like a good idea to use the same model for the foreign security side of life. The unfortunate problem with this idea is that the standard methodology of a court that tries to derive rules through precedents and high ideals doesn’t really work that well in the messy world of international relations where political entities often have to match or counter underhanded methods of their opponents.

The way I see this issue is that we have a need we want to address. The first method we used to address the need didn’t work. The political and technologic changes that took place between 1978 and 9/11/2001 made the inflexible FISA Court system snap. Traditional jurisprudence is not the right model for this type of overview. The overview mechanism needs to be designed to accommodate rapid changes in the political landscape.

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As pointed out in previous posts, this whole “warrantless wiretap” issue is driven by technological and not simply by political concerns.

Back in the analog world of 1978, the world used analog switching technology, and communications was controlled by a monopoly. It was very easy to identify the source and destination of communications. The state of technology worked well in a warrant system. Since we could easily identify calls, it was natural to make a system where the snooper got a court order for specific communications that they wanted to tap.

We went through a long stretch of peace where things worked great.

On 9/11 we woke up to burning skyscrapers and found the whole political and technological landscape changed. Calls were no longer analog. They were digital, packetized and encrypted. There was substantially more data streams coming into the nation.

Suddenly, identifying communications is the challenge.

Not only is it difficult to identify calls, it is easy to piggyback one message on another. A terrorist message can easily piggyback on an innocent call.

The warrantless wiretap issue exists because, if we want to find terrorist communications, we have to sort through a large number of innocent communications.

As one could have predicted in 1978, the FISA Court broke down during its very first real challenge. The fact that the FISA Court is broken should be acknowledged. Instead, we are stuck in the political game where George Bush is trying to use the failure of the system to get rid of the FISA Court and his opponents are trying to portray Bush’s efforts as a usurpation of Constitutional Authority.

I think both sides are behaving childishly.

Alberto Gonzales is 100% correct in noting that the rigid system of the traditional judicial system fails when applied to foreign surveillance. The left is right to point out that our new super intrusive surveillance technology demands third party oversight.

Both sides are right in their arguments but wrong in their methodology of argumentation.

Bush wants to use the failure of the FISA Court to shunt off what he considers to be an encroachment of executive authority. The far left wants to use the issue to create fear and loathing of Republicans. (Let’s face it, the Deseret Spectacle post was really nothing more than an ad hominem attack on Bush and Alberto Gonzales.)

When I look at the issue, I see that modern technology demands a loose system of warrants. This looser system of warrants actually creates a greater need for oversight on how the data gets used.

Personally, I think the solution is to change the oversight function so that its primary concern is not what data gets collected. The oversight function should focus on how the data gets used. For example, the intelligence community should be able to scrub all the inbound into the United States for embedded messages. It may even be wise to scrub for any patterns that might identify calls from hostile entities. The oversight group would have control on determining which calls go on for further processing.