Tuesday, August 07, 2007

When Warrantless Wiretaps are Warranted

Sorry, but I think Timothy B. Lee Cato has this one wrong. I think the new security bill is inching in the right direction. Unfortunately, since everyone is asking the wrong questions, we keep getting the wrong answers. In 2001, Bush failed to address the issue as he was stuck on some 19th century thoughts on executive authority. Civil libertarians have been unable to address the issue as they are stuck the fantasy that warrants protect rights.

It is not the warrant system that protects civil rights. It is the open court system that protects liberty.

The warrants given in criminal investigation is not the thing that is protecting our liberty. It is the open court system that is protecting our liberty. The warrants are just a tool devised by the court system. The warrants work because they evolved as part of a process of investigating crime. The warrants help legitimize information used in an open court.

Espionage is something completely different. First of all the people we need to spy on are not criminals. In most cases, they are patriots who just happen to be loyal to a different country.

More importantly, the spying really doesn't lead to a direct confrontation in open court.

Spying is driven by diplomatic needs and leads to either diplomatic or military action.

The prattling about "warrantless wiretaps" in foreign surveillance is off base because it forces the wrong assumption (that there will a confrontation in court) on the surveillance process.

For that matter, this preoccupation with "warrantless wiretaps" is really nothing more than a bad pun. The word "warrantless" sounds like "unwarranted." The first term means that an action takes place without a court order.

This blog post is warrantless because I wrote it without a warrant from a court.

The term "unwarranted" means unnecessary.

People get these words mixed up all the time. When we hear "warrantless wiretap" we think the wiretap must be unwarranted.

A court can give a warrant without justification, in which case you have an unwarranted warrant. Conversely the court could deny a warrant when the situation warrants a warrant. Here is a fun pun. In some cases, the police simply don't have time to get a warrant. Let's say a policeman see a man grab a girl off the street and run into a building. The man is holding a knife and the girl is screaming. In this case we feel that a warrantless search of the premise is warranted.

Anyway, the search warrant is not the thing that protects the rights of the defendant, it is the open trial.

Trying to extend the warrant system to a system that does not have open trial does not protect anyone. It simply makes things convoluted. In many ways, it actually makes the foreign surveillance system more dangerous since the warrants will give a legal authority to foreign surveillance that the surveillance does not warrant.

The FISA Court is not an open court. It is a secret court. The judges on this court are aware that they will be held accountible for any perceived failure of the foreign surveillance community. As such, they are likely to be excessively loose in issuing warrants.

Unfortunately, these warrants will carry the same authority and respect as the warrants given in an open court system. The warrants issues by the secret court are likely to have an legal authority that foreign surveillance really does not warrant.

The existence of secret court is also problematic.

There has never been a court that has not wanted to expand the scope of its influence. Secret courts have been known to expand their influence in secret.

The FISA Court starts its existence in a vacuum. It issues warrants to a secret police. These warrants are not part of a large open trial. The judges will only be held accountable by the public if they fail to issue a warrant that could have stopped a terrorist activity.

Even worse, the court itself was conceived a partisan political battle between the Democratic party and Richard Nixon.

This system, conceived in a political vacuum, finds itself embroiled in an ongoing terrorist war where the geopolitical reality warrants increased surveillance of international communications. Because intense scrutiny of communications is warranted, the secret FISA court is likely to establish a precedence of giving warrants to examine communications that do not, in and of themselves, warrant a warrant.

The reason that this happens is the nature of communication technology. In the criminal justice system, you are generally directly observing a suspect. Since you are directly observing a suspect, you will be able to pinpoint the communications that you want to tap.

In foreign surveillance, the communications take place outside your scrutiny. You rarely can pinpoint the conversation that you want to tap. There is not an AT&T guy sitting on a telephone poll outside bin Laden's yurt who can identify the calls from bin Laden.

Now, imagine that there is a compelling reason to believe that a terrorist group just sent a communique to a terrorist cell in the United States. You know that the communication occurred. You know that the communique tells the terrorist cell which train station to blow up and when. You know that you will be held accountable if the communication get though. The problem is that the FISA Court judge and army of snoopers don't know where the communication is.

To find the communique that warrants a warrant, the FISA court will have to give a warrant to search through all of the communications that took place in a given period of time. These other communications do not warrant a warrant. You have to look at them to find the communication that warranted the warrant.

Don't you see. The very nature of foreign surveillance will drive the secret court systems to give warrants to communications that do not warrant a warrant. There is not a open court system to address excesses. There is only a poltical process that will bear down on the judges if they cause an intelligence failure.

The judges on the secret court will find themselves in an impossible situation. The judges know that they will be held accountable for intelligence failures, and will gradually fall into a pattern of issuing warrants that give legal authority to surveillance excess.

The fact that the secret court has a one sided mission will cause a corruption of the warrant system.

The bureaucratic process of issuing warrants is not the source of our liberties.

When you take the same bureaucratic process from the open court system and place it in a secret court system, you will see a corruption of the bureaucratic process. The long term result of the secret FISA Court will give greater authority to the secret police.

I agree that there should be third party oversight of foreign surveillance. However, it is pure folly to take a warrant system that is dependent on an open court system and think that it will work in a secret court system.

An effective system of third party oversight in foreign surveillance must be derived from the diplomatic world. The diplomatic world is, by its nature, much more loosy goosy. Diplomatic needs change with time. In times of war the need for foreign surveillance grows in times of peace it diminishes.

Imposing a rigid bureaucratic system on a system that demands flexibility will result in failure.

While a rigid bureaucratic system seems to work well in criminal courts. We know that it is likely to fail in the diplomatic world.

The criminal justice surveylance system is built on the fact that you can directly observe the criminal suspect. That means you can define the surveillance and the oversight of the surveillance system in a positive space.

Foreign surveillance does not allow for such direct observation. As such, it is probably best to design the oversight to work in a negative space. The oversight should be defined by activities that we want to prevent. We want to prevent politicians from using foreign intelligence from domestic political rivals. We want to prevent excessive intrusion on people's privacy.

Above all, we want to prevent the warrantless wiretaps used to spy on foreign agents from being used in our criminal court system.

The goal of oversight should be to prevent the abuse of the information gathered through foreign surveillance and not to prevent the surveillance itself. For example, in times of war, the intelligence community should be able to open any communications to see if it contains a message from the terrorist, but it should be prevented from using any of the information gleened from innocent communications.

The best way to do this is to embrace the warrantless nature of foreign intelligence. As foreign intelligence was not gleened from a court order, it cannot be used in courts. It might be used to start an investigation, but could not be used as evidence.

Rather than authorizing foreign intelligence, the oversight should be concentrating on controlling the flow of foreign surveillance in the government. The best system would have a layer of snoops who have the authority to look at all communications from the Mideast looking for possible messages from terrorist. The oversight committee should aim its effort at preventing any non-terrorist related information from leaving this group.

We do need oversight. We need oversight that changes with political reality. The process should be driven by diplomatic needs. We need to prevent foreign intelligence from leaking into the criminal or political system.

This said, it is foolish to assume that a bureaucratic process used by an open court system will make a secret court system okay. The oversight should exist, but it should not be in the form of a court because such courts will become corrupt with time. The goal of the oversight should not be aimed at authorization of surveillance by at the prevention of abuse of foreign intelligence.

Civil Liberties are not protected by bureaucratic processes. They are protected by an open society.


Scott Hinrichs said...

Thank you for your observations about how an open court system helps ensure civil liberties. Of course, a secret court is an aberration that can only cause problems. I loved your unwarranted warrant quip.

y-intercept said...

I admit, I am surprised that civil libertarians are so keen on expanding the power of a court (especially a secret court).

I see their position as a product of modern thinking which holds that conflict is the source of freedom and not reason.