Tuesday, February 20, 2007

Bad Oversight Guarantees Bad Results

Have you noticed that just about ever post I’ve written on FISA begins with the statement that I think third party oversight of foreign surveillance is a good idea?

My experience in life, however, is that that bad oversight is worse than none at all. The first generation of FISA was a bad model. FISA is trying to impose the methods designed to oversee wire tapping in criminal investigations onto foreign surveillance. This is a recipe for disaster. The two systems have radically different objectives and exist in radically different spaces.

Criminal justice is driven by a desire to convict criminals for criminal acts. In this system a judge will issue a warrant for a wire tap based on probable cause that the person being investigated committed or is about to commit a crime.

Foreign agents abroad and their operatives in the United States are no more criminal than American agents and operatives abroad.

Foreign intelligence is not about convicting a defendant of a crime. It is about identifying threats and preventing foreign interests from doing bad things in the United States. A system that evolved to weigh the needs of a defendant and plaintiff just doesn’t fit.

Trying to impose such a system on foreign intelligence creates a logical absurdity; such absurdities in law enforcements tend to lead to major problems.

Oversight should be based on developing best practices for foreign surveillance. It seems to me that a primary concern of foreign surveillance is to determine if there foreign agents are inserting communications in innocent civilian communications. It seems to me that monitoring such communications will involve examining a large number of innocent communications.

If this is the case, then the goal of oversight is to prevent the misuse of any information that America’s snoops glean from the innocent communications that they examine. Rather than having the third party control determining where the snoops can look, the third party control should be between the gathering and use of the information.

IMHO, foreign intelligence should be restricted primarily to identifying threats and preventing attacks from foreign agents.

Now, let’s look at the system where a court starts issuing warrants for investigations. The issuing of warrants changes the nature of the data collected. The FISA court doesn’t want to be seen as impeding necessary surveillance for national security. They will be issuing warrants right and left.

It seems to me that a snoop with a warrant will be far more intrusive than one without a warrant.

In his last post Democracy_Lover finally let on that the primary reason that he finds FISA such an important issue is that he does not trust Bush or Cheney.

Let’s assume for a moment that Bush really is the horrible person of progressive nightmares. Let’s assume, Bush is out to do as much harm to the US as possible during his presidency.

I contend that if this nightmare is true, then the re-instatement of the FISA court actually throws us into the worst of all worlds. Bush and his snoops just had four years where they can identify all of the people who they want to harm. The problem, of course, is that since Bush and his henchmen gathered this information without warrants, they really can’t do the harm that they want to do.

A re-instated FISA Court will be wanting to prove that it is not an impediment to national security; so it will be liberal on issuing warrants.

Bush and his henchmen will then be able to use all of the stuff that they gained during their unsupervised snooping to get warrants against all of their enemies. So, if DL is right and Bush is not a human but an evil cartoon character, then Cheney and Bush will be wringing their little cartoon hands, and letting loose with fiendish cartoon laughs because the broken FISA court will give them the tools to attack their enemies.

I agree that we should have third party oversight of foreign surveillance. Unfortunately, from the inception of FISA in 1978, to Bush’s FISA backpedaling since 9/11, the FISA court has been an example of politics at its worse. The FISA is structured as such that it will prevent the work that needs to be done (the examination of civilian communication channels for embedded messages) and will be far too lenient on issuing warrants for criminal or political investigations.

The fact that the current structure of FISA has created the worst of both worlds is not surprising. First of all, first generations of all systems are buggy. This is especially true of the FISA court because the court was born of political motivations and designed as a political tool to attack Republicans in the wake of Nixon’s misuse of executive authority.

I think we should fix the court. Sadly, Bush’s neocon philosophy is one obstacle to fixing the problem. We must also remember that Democrats are another obstacle.

Look at how much animosity the FISA debate has created for Bush. Democratic thugs love the FISA court because there is an entire legion of paranoid buffoons who will interpret any effort on the part of Republicans to fix a broken problem. The FISA court is a great political tool.

A final note … for those foolish enough to think that courts are the height of reason and will protect us from the government: I just walked by a TV and saw some of the grandstanding by the judge deciding when and where to bury Anna Nicole Smith. The judge was behaving like a buffoon. He was grandstanding, and posturing for the cameras.

Judges are human! If we want to have foreign surveillance that protects us with a minimal impact on our privacy; we avoid designing a system that depends on the integrity of the judge. What we need are systematic constraints that prevent nonrelevant data collected in foreign intelligence from being misused by the government.

Because the judges, the snoops and the executive are all humans, the foreign surveillance system will lead to bad results if the system of oversight is structured in the wrong way.


Charles D said...

I certainly don't trust Bush and Cheney, but I didn't trust Clinton, Bush I, Reagan, Carter, Nixon, Johnson or Kennedy either. People in power have a strong tendency to use that power to push their own agenda. It's not really a partisan thing, it's part of our Constitutional system of checks and balances, and we weaken it at our peril.

Judges are human as are Presidents. Some oversight is generally better than no oversight though, and no matter what kind of system we design it will depend on the integrity of the people charged with maintaining it. There are no systematic constraints that do not involve human intervention and human decision making, and if there were, there would be no way to hold them accountable.

y-intercept said...

I don't trust them either.

IMHO, the public court systems work because the court is balancing the rights of the people in the case who are generally present in the court room.

Secret Courts, however, are done in secret. They lack the correcting mechanisms of public scrutiny. A strange mix of secret spy agencies with secret courts can create a weird chamber effects where the bad aspects of both systems resonate off eachother. The end effect is worse than the stand alone spy agency that lacks the legitimacy given by judicial oversight.

The really bad things that have happened in the history of surveillance almost always involve the worse aspects of a spy group and a secret court resonating off eachother.

Quite frankly, the situation where Bush exercised executive authority while the Democratic opposition wailed about it probably did more to protect rights than we would see in a situation where there was a secret court legitimizing the actions of Bush's snoops.