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.

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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.

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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.

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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.

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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.

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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.

Setting Kookery in Stone

Imagine, if you would, that the religious kooks got their way and passed a law banning the teaching of evolution in schools.

Imagine now having an enlightened Democratic president who is reluctant to enforce the anti-evolution law since he thinks it will diminish the value of education.

The religious kooks then call for an impeachment.

The religious kooks who wrote the anti-evolution bill might think their bill was the best law ever passed. They may even think it was passed by direct revelation from God!

When you get down into the nitty gritty politics of impeachment, however, you would find the people who think that the evolution ban was a bad idea, would not support the impeachment.

This wrangling between legislature and administration is pretty much what you expect in a democratic republic. For that matter, I suspect the founders would expect push back as being par for the course, and would not consider such things an impeachable offense.

I hate that Bush has chosen to push back on FISA. I hate Bushisms, I hate how Bush appears to avoid engagement in debates with people (except, of course, on Fox and CSPAN).

As much as I hate all of that, the FISA court thang is one of the reindeer games they play in Washington. We may hate reindeer games, but it's not quite impeachment fodder. Examine the logic of the FISA system, it is pretty much equivalent to a pro science administrator pushing back against anti-evolution legislation.

Many people see the FISA as passed in 1978 as a recipe for disaster. Yes, I agree that it is wise to have third party oversight of intelligence. The problem is that we have a court trying to impose the requirements for criminal investigation on foreign intelligence. It doesn't work because foreign intelligence is different from criminal investigation.

Looking at this from a different angle: Should the same methodology applying to criminal investigations be used for health inspections? Should the health inspector have to prove probable cause to get a warrant to inspect a restaurant? Or should health inspections be routine?

What a food handler does in the bathroom is their own business ... except when it comes to washing their hands.

Should health inspectors have probable cause that a bird has the flu before testing a chicken coop for bird flu? I think not. In my opinion, a good health inspection system has a great deal of random sampling. There should be a body of laws with ample protection for the rights of restaurants, farms and what not. That layer of protection shouldn't be at the issue of warrants for health inspection.

A jurist cannot derive from the aether the proper number of health inspections needed to optimize public safety.

Anyway, Conservatives look at the FISA thing as a bad law that will diminish public safety. Impeaching a president for failing to enforce a law that many believe will adversely affect public safety would fly as well as impeaching a president because he allows the teaching of science despite in a world with anti-evolution laws.

I think 3rd party oversight of foreign intelligence is a great idea. The first generation of FISA is buggy and danger. I hate that Bush is playing reindeer games rather than trying to fix the problem. Regardless, the FISA issue falls short of impeachment fodder as the law itself is in dispute.

Presidential Authority

Two interesting pieces of news. The peoples' number one enemy George W. Bush is being forced to back down from his surveillance program, while the Venezuelan legislature grants progressive hero Hugo Chevaz approval to rule by decree.

Don't worry. The fact that progressives are attacking Bush for wanting to rule by decree during a war, and progressives granting rule by decree to Chavez is not hypocracy. Since progressives have no beliefs beyond the single object of grabbing absolute power, they are incapable of hypocracy. In the material dialectic, words are weapons. Progressives are just using the same weapon in different ways in two different countries at the same time. Unfortunately, since progressives pretty much deny all of the underlying foundations of reason, it is impossible to talk about Chavez. We can, however, talk about Bush.

Quite frankly, I think Bush has completely mishandled the wire tapping issue. For some bizarre reason, Bush wants to relive the Watergate era. After Watergate, Congress demanded that a court be part of any wiretapping or surveylance program. This fits in quite well with the separation of powers mandated by the US Constitution. For some unfathomable reason, Bush has this weird notion that he can use the war in Iraq to cut the courts out of the process. His idea is that wiretapping should be done solely on the executive authority.

Bush is essentially playing a suicidal game of chicken with the courts and hoping to use the war to justify a questionable change in procedure.

On this issue, I have to concede that the stuff the Bush administration is doing is stuff that actually has to be done.

The driving problem behind the wiretapping issue is that changes in technology have made the old wiretapping methods obsolete. The wiretapping laws were established for analog communications in a day when there was a telecommunications monopoly. Analog telecommunications worked by creating a direct connection between two callers. Since it was relatively easy to identify a call, you could have a system where you gave a warrant to listen to a conversation from a particular group, and you could very easily indentify the connection and listen to the call by tapping the wire. (Hence the name wiretapping).

In the digital age, everything is packetized and often encrypted. There are thousands of more switches in play. Steams of data can change from switch to switch.

The other problem is that computers have made it childplay to hide messages inside other messages. For example, I could be varying the spaces between words in this brainfart blogpost to communicate to my terrorist cell to issue my diabolical commands. muuahaha!

Ooops, I didn't mean to mention my plans to take over the world in public.

Because everything is packetized, encrypted and mixed together, you can't just wire tap by tapping a wire. If you tap the fiber optic wire between here and Iran, you won't just get a series of discreet communications separated by frequency. You will get a whole jumble of data packets.

To reassemble the packets, you have to read the headers of every packet on the line. That is just the way that routing works. In many cases you have to look at the content of the packet to figure out what it is.

Since we can't just tap a wire, the best way to handle the problem is to write everything to a massive data warehouse then set down to reassemble communications, so that you can identify the ones that came from the people you have warrants to watch.

The idea of storing the data is somewhat problematic for the original thinking on privacy. Even if the intention is just to reassemble the data streams belonging to people identified in warrants, the method captures data from innocent third parties.

I have less problem with the storing data since technologies like email work by storing then moving data. IMHO, the CIA's effort to grab all data from foreign sources isn't the problem, the problem is on what they choose to listen too. The controls need to be on the process of turning raw data into information.

In my opinion, the way to handle this is to separate the snooping processing into two legal processes and three technical processes. The first legal process would indentify who we want to watch. In the case of war, the brush may be broad. We are intested in any Al Qaeda and Hezbollah communications to the US. The first technical process would simply concern gathering the data. The second technical process would analyze the data to isolate communications for the groups we are watching. This second group would pretty much have free reign on opening files to see what is in them. The second legal process would sit between this analytic team and the snoops to make sure the snoops only get the stuff warranted and that the data analysis team deletes the neutral stuff.

I think Bush is on the wrong track. He wants the folks using the information to have full control over gathering analyzing it with no court supervision.

On the political end, Bush's insistence on rehashing Watergate has been horrible for his party. Since Reagan, the Republican Party has been a mix between classical liberals and conservatives. The privacy issue is very important to the classical liberal. Groups like Cato are in a lather over the privacy issues. Bush and the Neoconservatives have systematically been driving the classical liberals out of the Republican Party, leaving them trapped between two extremes.

Progressives love the wiretapping issue. It is dividing their enemy. When progressives grab power, they will be able to use all of the bad precedences set by Bush to help them establish a Chavez style totalitarian regime in the US.