At the Stroke of Midnight

by

At midnight on Saturday, certain statutory authorizations for the interception of terrorist communications were allowed–by congressional inaction–to expire. See the National Review article with the headline: When the Clock Strikes Midnight, We Will Be Significantly Less Safe; also President Bush’s radio address here.

A couple of months ago, Shannon Love addressed some of the issues involved in commuications intercepts. This seems like an appropriate time for some additional discussion on the topic.

Some other useful resources:

1)The White House fact sheet

2)A fairly long article (PDF) which discusses some of the technical complexities which affect this debate.

Thoughts?

UPDATE: Robert Novak says: The true cause for blocking the bill was the Senate-passed retroactive immunity from lawsuits for private telecommunications firms asked to eavesdrop by the government. The nation’s torts bar, vigorously pursuing such suits, has spent months lobbying hard against immunity.

The recess by House Democrats amounts to a judgment that losing the generous support of trial lawyers, the Democratic Party’s most important financial base, is more dangerous than losing the anti-terrorist issue to Republicans.

I’m not much of a Robert Novak fan, but in this case, I’m afraid his statement contains a strong element of truth.

UPDATE 2: William Kristol on Orwell, Kipling, and the responsibilities of governing, with particular reference to the communications-intercept issue.

See also this post and discussion at Neptunus Lex.

7 thoughts on “At the Stroke of Midnight”

  1. David, great info.

    I think the key passage in the longer document you referenced is this:

    The fundamental challenge to existing law and policy, however, is not technological—if it were, resolution might be more easily accomplished. The real challenge arises from the need to pursue preemptive strategies against certain potentially catastrophic threats from transnational terrorism and nuclear weapons proliferation that in part necessitate using electronic surveillance methods that were not originally intended to be covered by FISA or related warrant procedures (and that don’t easily lend themselves to such practices) but that increasingly affect the privacy and civil liberties interests of persons in the United States.

    The above is footnoted as follows:

    It is beyond the scope of these comments to delineate precisely where the line should be drawn between threats to national security that require a preemptive approach and those that remain amenable to traditional reactive law enforcement methods. However, it is axiomatic that national security assets, including foreign intelligence surveillance capabilities, should be employed only against true threats to national security and not for general law enforcement or social control purposes.

    My immediate reactions:

    The risk is more conceptual/political than technological. (I do not mean to discount Shannon’s explication of the crucial difference between circuit and packet communications.)
    The whole idea of preemption will arouse opportunists who will not hesistate to use ahistoric arguments to claim that the current Administration is out of control and acting without precedent, and more generally that war is an unforced error which we can entirely avoid by simply deciding not to pursue it.
    It may also arouse those opposed to world government, particularly one whose services are largely provided by the US, since preemptive, global SIGINT-gathering aimed at managing our national-security risks seems rather likely to catch lots of bad people planning bad things in other countries as well. Welcome to the 21st century.
    Given that the timescale of the 9/11 plot was less than 5 years from conception to execution and less than 3 years from serious backing to execution, a significant lapse in our monitoring abilities could lead to serious trouble in the 2011-13 timeframe. Will the 2000s someday be called a “low dishonest decade”?
    In general, things like this are why I sometimes wish the NAACP had gotten another 0.3% of first-time black voters to the polls in Florida in 2000. In a Gore administration, after 9/11 the whacko antiwar left would have been as effectively marginalized as has the whacko antiwar right. Harry Turtledove, call your office.

    Thanks again for a thought-provoking post.

  3. Jay Manifold,

    In a Gore administration, after 9/11 the whacko antiwar left would have been as effectively marginalized as has the whacko antiwar right.

    Unfortunately, I don’t think so. LBJ faced a hysterical resistance from the far Left over the war even as he enacted the Civil Rights amendment and the Great Society. Fighting a war marginalizes the articulate intellectuals and they cannot stand that. They will oppose all military action reflexively unless they or one of their sacred cows is directly threatened with violence.

  4. I think part of the problem is that people don’t understand what I like to call the “information zero” problem. Information-zero, like patient zero or ground zero, is the initial unit of information that triggers an investigation. Few people stop to think about where information-zero comes from in an investigation intended to prevent a terrorist attack.

    In civilian reactive law, information-zero is the crime itself. A murder, assault, theft or other crime occurs that triggers the investigation. Investigators use the existence of the crime itself as the legal justification for all their future actions. Without the evidence of the crime itself, the civilian reactive law sits passively.

    If we want to prevent an act from occurring we must actively search for indications that someone is planning a crime. We must sift through mounds of perfectly innocent data looking for that one datum that will become information-zero. In the internet age, that means scanning packet based communications looking for suspicious data. Once we do that, we can use that information to initiate an investigation.

    In my opinion, most of the critics of the revised FISA have flat out lied about what is actually going on. For example, they have claimed that doing mere anonymous traffic analysis constitutes “domestic spying.” Perhaps, Jay is correct and a Democratic President can implement the necessary changes under the cover of better PR.

  5. Similarly, the whacko pro-war right won’t see a problem with expansion of domestic spying until they themselves are spied on. (Imagine if Paul Wolfowitz’s conversations had been recorded prior to 9/11). Which won’t happen until the next administration, if ever.

  6. Tyouth,

    If we actually had an expansion of domestic spying then I would be concerned but since, as far as I can tell, everyone who claims domestic spying is outright lying, I’m rest more easily.

  7. Similarly, the whacko pro-war right won’t see a problem with expansion of domestic spying until they themselves are spied on. (Imagine if Paul Wolfowitz’s conversations had been recorded prior to 9/11). Which won’t happen until the next administration, if ever.

    Clinton and the FBI files. The Left didn’t have a problem with it then…

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