A Scary Thought: Do We Really Need “If You See Something, Say Something?”
At the National Sheriffs’ Association Conference in Washington last week, Homeland Security Secretary Janet Napolitano noted that riders on the DC Metro system can hear her voice repeatedly promoting her department’s “If You See Something, Say Something” terrorism hotline campaign. “That’s a scary thought,” she suggested.
Even scarier to me is the campaign itself.
It was begun in New York City where it generated 8,999 calls in 2006 and more than 13,473 in 2007. Although the usual approach of the media is to report about such measures uncritically, one New York Times reporter at the time did have the temerity to ask how many of these tips had actually led to a terrorism arrest. The answer, it turned out, was zero.
That continues to be the case, it appears: none of the much-publicized terrorism arrests in New York since that time has been impelled by a “If You See Something, Say Something” tip.
This experience could be taken to suggest that the tipster campaign has been something of a failure. Or perhaps it suggests there isn’t all that much out there to be found. Undeterred by such dark possibilities, however, the campaign continues, and the number of calls in New York skyrocketed to 27,127 in 2008 before settling down a bit to a mere 16,191 in 2009.
For its part, the FBI celebrated the receipt of its 2 millionth tip from the public, up to a third of them concerning terrorism, in August 2008. There seems to be no public information on whether the terrorism tips proved more useful than those supplied to the New York City police. However, an examination of all known terrorism cases since 9/11 that have targeted the United States suggests that the “If You See Something, Say Something” campaign has never been relevant.
It turns out that New York has received a trademark on its snappy slogan, something Napolitano’s DHS dutifully acknowledges on its relevant website when it refers to its public awareness campaign as: “If You See Something, Say Something&™.” (Nowhere on the website, by the way, does the Department bother to tally either the number of calls it receives or the number of terrorism arrests the hotline has led to.)
New York has been willing to grant permission for the slogan to be used by organizations like DHS, but sometimes it has refused permission because, according to a spokesman, “The intent of the slogan is to focus on terrorism activity, not crime, and we felt that use in other spheres would water down its effectiveness.” Since it appears that the slogan has been completely ineffective at dealing with its supposed focus—terrorism—any watering down would appear, not to put too fine a point on it, to be impossible.
Meanwhile, in New York alone $2 million to $3 million each year (much of it coming from grants from the federal government) continues to be paid out to promote and publicize the hotline.
But that’s hardly the full price of the program. As Mark Stewart and I have noted in our Terror, Security, and Money, processing the tips can be costly because, as the FBI’s special counsel puts it, “Any terrorism lead has to be followed up. That means, on a practical level, that things that 10 years ago might just have been ignored now have to be followed up.” Says the assistant section chief for the FBI’s National Threat Center portentously, “It’s the one that you don’t take seriously that becomes the 9/11.”
It might seem obvious that any value of the “If You See Something, Say Something™” campaign needs to be weighted against the rather significant attendant costs of sorting through the haystack of tips it generates. Of course, the campaign might fail a cost-benefit analysis because it is expensive and seems to have generated no benefit (except perhaps for bolstering support for homeland security spending by continually reminding an edgy public that terrorism might still be out there).
This grim possibility may be why, as far as I can see, no one has ever carried out such a study and that the prospect of doing one has probably never crossed the minds of sloganeer Napolitano or of the rapt sheriffs in her audience.
Now that’s a scary thought.
Wittgenstein, Private Language, and Secret Law
One would like to say: whatever is going to seem right to me is right. And that only means that here we can’t talk about ‘right.’ — Ludwig Wittgenstein, Philosophical Investigations §258
Among the arguments for which the great 20th century philosopher Ludwig Wittgenstein is famous, perhaps the best known—and most controversial—is his argument for the impossibility of a truly “private language.” Since Wittgenstein’s own language was, if not quite “private,” notoriously opaque, it’s a matter of some controversy exactly what the argument is, but here’s a very crude summary of one common interpretation:
Language is, by it’s nature, a rule-governed enterprise. Under normal circumstances, for instance, I use words correctly when I say “there’s a yellow school bus outside,” just in case there is a yellow school bus outside. If, instead, there’s a blue Prius, then I may be lying, or trying to make some sort of signally unfunny joke, or confused about either the facts or about what words mean—but I am, one way or another, using the words “incorrectly.” And indeed, the only way words like “yellow” and “school bus” can have any specific meaning is if they’re correctly applied to some things, but not to others.
Now suppose I decide to invent my own private language, meant to describe my own internal sensations and mental states, maybe for the purpose of recording them in a personal diary. On the first day, I experience a particular sensation I decide to call “S,” and record in my diary: “Today I felt S.” As time passes, on some days I write S to describe my private sensations, and on other days maybe I come up with different labels—maybe T, U, and V. This certainly looks like a private language, but there’s a problem: each time I write down “S,” the idea is suppose to be that I’m recording that I had the same sensation I had the first day—S—and not T, U, or V. But what’s the criteria for “the same”? What makes it true that my sensation on day 27 really is “more like” the sensation S that I had on day 1, and not V, which I first had on day 16? How do I know that this new sensation is really an S and not a V? (Say S was an itch in my hand; will I be correct to use S to refer to an itch in my shoulder? Or a pain in my hand? Or for that matter a pain in my shoulder?) The only criterion is that it seems or feels that way to me. But in that case, I’m not really engaged in a rule-governed language system at all, because in effect S applies to whatever I decide it does. Since I can never really be wrong, it doesn’t really make sense to say I’m ever right in my use either. Since the terms are truly private, there’s no difference between “correctly applying S” and “specifying in greater detail what S means.” What looked like a “private language” was actually just a kind of pantomime of a true, rule-governed language.
I found myself thinking of Wittgenstein and his private language argument, oddly enough, when thinking about the various forms of “secret law” and “secret legal interpretations” that increasingly govern our endless War on Terror. Consider, for instance, the secret legal memorandum justifying the assassination of Anwar al-Awlaki, discussed in an October 8 New York Times piece:
The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.
Whether or not one agrees with the substantive principle articulated here, this at least sounds like a real rule limiting the discretion of the executive. Except…who decides when a capture is “not feasible” (as opposed to merely risky, costly, or inconvenient)? The same executive who is meant to apply and be bound by the rule. Who determines when the threat posed by a citizen is “significant” enough to permit targeting? Again, the executive.
This is not, one might object, a wholly “private” interpretive problem, because the Office of Legal Counsel provides some kind of quasi-independent check: it will occasionally tell even a president that what he wants to do isn’t legal. But in that case, the president can simply do what Barack Obama did in the case of his intervention in Libya: keep asking different legal advisers until one of them gives you the answer you want, then decide that the more favorable opinion overrides whatever OLC had concluded.
Similar considerations apply to the “secret law” of surveillance. The FBI may issue National Security Letters for certain specific types of records—including “toll billing records”—without judicial approval, but these secret demands must at least be “relevant to an authorized investigation.” A weak limit, we might think, but at least a limit. Yet, again, the apparent limitation is illusory: it is the Justice Department itself that determines what may count as an “authorized investigation.” When Congress initially passed the Patriot Act a decade ago, an “authorized investigation” meant a “full investigation” predicated on some kind of real evidence of wrongdoing. Just a few years later, though, the attorney general’s guidelines were changed to permit their use in much more speculative “preliminary investigations,” and soon enough, the majority of NSLs were being used in such preliminary investigations. Needless to say, “relevance” too is very much in the eye of the beholder.
In most of these cases, the prospects for external limitation are slim. First, of course, anyone who disagreed with the executive’s secret interpretation would have to find out about it—which may happen only years after the fact in whatever unknowable percentage of cases it ever happens at all. Then they’d have to overcome the extraordinary deference of our court system to assertions of the State Secrets Privilege just to be able to have a court consider whether the government had acted illegally. In practice, then, the executive is defining the terms of, and interpreting, the same rules that supposedly bind it.
The usual thing to say about this scenario is that it shows the importance of checks and balances in preventing the law from being perverted or abused. If we think there is at least a rough analogy between these cases and Wittgenstein’s diarist writing in a “private language,” though, we’ll see that this doesn’t go quite far enough. What we should say, rather, is that these are cases where “secret law,” like “private language” is not merely practically dangerous but conceptually incoherent. They are not genuine cases of “legal interpretation” at all, but only a kind of pantomime. Perhaps what we should say in these cases is not that the president or the executive branch may have violated the law—as though there were still, in general, some background binding principles—but that in these institutional contexts one simply cannot speak of actions as “in accordance with” or “contrary to” the law at all. Where the possibility of external correction is foreclosed, the objectionable and unobjectionable decisions alike are, inherently, lawless.
Wanna-be Mass. Terrorist Incompetent, Lacked Resources
The media has again provided us with a breathless report of a terror plot. This time it’s a 26 year-old Massachusetts man, Rezwan Ferdaus, who planned to fill three remote controlled airplanes with explosives and then fly them into the Pentagon and the U.S. Capitol.
Ferdaus’s accomplices were FBI agents. As with many past cases, the FBI agents were crucial to his plot. Without the FBI’s men, money, and “explosives,” there is very little chance that Ferdaus could have successfully committed an act of terrorism.
Ferdaus, broke and living with his parents, had a plan that should make us question his mental competence. He planned to fly two remote-controlled airplanes, each packed with five pounds of explosives, into the Pentagon using GPS-guidance, and another similarly loaded plane into the U.S. Capitol’s dome, which he apparently thought would cave in. Following that, he would somehow destroy the bridges at the Pentagon complex and a six-man team armed with AK-47s would attack the complex. Whom he would recruit with the ability to launch such an audacious assault is not clear. The affidavit never identifies a non-FBI accomplice. At one point, Ferdaus says that he told a friend about his idea, but that his friend declined to participate and suggested that it would be easier to shoot up a military recruitment center. So, absent FBI assistance, Ferdaus’s plan would have been impossible until he had found several more willing participants.
Another impediment was money. Ferdaus purchased only one of the remote control planes for a total of $7,500, which was provided by the FBI. He needed several thousand dollars more to buy the other two. Ferdaus even needed the FBI’s help to pay the $450 fee for a rental facility where he planned to store his material and construct his bombs.
Even if Ferdaus had succeeded in finding others and buying the planes and other necessary electronics, he would still have needed to create a proper explosive that could be detonated at precisely the right time. He initially planned to use several grenades that would have had their pins pulled exactly three seconds before impact using a “detonation servo” device. He later decided to use “plastic explosives,” or C-4, as long as it was “obtainable.” As directed, the FBI undercover agents provided him with 25 pounds of C-4, only 1.25 pounds of which was real. They also delivered six fully-automatic AK-47s.
Wanna-be terrorists face numerous obstacles to success, starting with their own incompetence. We should applaud the FBI’s investigative zeal but keep in mind that without them, Ferdaus probably wouldn’t have launched an attack, let alone succeeded in it. Here we have a ”Darwin Award nominee,” not the hypercompetent home-grown terrorist the authorities keep telling us to expect. Saying so is a way to avoid being terrorized.
Stalking the Secret Patriot Act
Since this spring’s blink-and-you-missed-it debate over reauthorization of several controversial provisions of the Patriot Act, Senators Ron Wyden (D-OR) and Mark Udall (D-CO) have been complaining to anyone who’d listen about a “Secret Patriot Act“—an interpretation of one of the law’s provisions by the classified Foreign Intelligence Surveillance Court granting surveillance powers exceeding those an ordinary person would understand to be conferred from the text of the statute itself. As I argued at the time, there is an enormous amount of strong circumstantial evidence suggesting that this referred to a “sensitive collection program” involving cell phone location tracking—potentially on a mass scale—using Patriot’s “Section 215″ or “business records” authority.
Lest anyone think they’d let the issue drop, Wyden and Udall last week released a sharply-worded letter to Attorney General Eric Holder, blasting the Justice Department for misleading the public about the scope of the government’s surveillance authority. The real audience for an open letter of this sort, of course, is not the nominal recipient, but rather the press and the public. Beyond simply reminding us that the issue exists, the letter confirms for the first time that the “secret law” of which the senators had complained does indeed involve Section 215. But there are some additional intriguing morsels for the attentive surveillance wonk.
The letter focuses particularly on “highly misleading” statements by Justice Department officials analogizing Section 215 powers to grand jury subpoenas. “As you know,” Wyden and Udall write, “Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are ‘analogous’ they provide the public with a false understanding of how surveillance law is interpreted in practice.”
Now, this is a little curious on its face. Ever since the original debate over the passage of the Patriot Act, its defenders have tried to claim that a variety of provisions allowing the FBI to more easily obtain sensitive records and documents were no big deal, because grand juries have long enjoyed similarly broad subpoena powers. The comparison has been specious all along: grand juries are an arm of the judicial branch designed (at leas in theory) to serve as a buffer between the power of prosecutors and the citizenry. It exists for the specific purpose of determining whether grounds for a criminal indictment exist, and is granted those broad subpoena powers precisely on the premise that it is not just another executive branch investigative agency. To argue, then, that it would make no difference if the FBI or the police could secretly exercise the same type of authority is to miss the point of how our system of government is meant to work in a pretty stunning way. It’s akin to suggesting that, since juries can sentence people to life in prison, it would be no big deal to give the president or the director of the FBI the same power.
Judge Mark Wolf, Criminal Informants, and the FBI
Judge Mark Wolf gets some well-deserved recognition in a New York Times editorial today for his spectacular effort to bring some accountability to the FBI scandal involving gangster informants. Here’s an excerpt:
The judge uncovered that John Connolly Jr., the F.B.I. agent who was their handler, had protected Mr. Bulger, a 15-year informant, and Mr. Flemmi, a 25-year informant, as they committed murder and conspired with the Mafia, in exchange for leads about the Mafia. It was Mr. Connolly who tipped off Mr. Bulger that he was about to be indicted and sent him on the lam. Judge Wolf testified against the F.B.I. agent at a 2002 trial before another judge. Mr. Connolly was sentenced to 10 years for racketeering, obstruction of justice and making false statements to investigators….
Judges are supposed to dispense justice but rarely root out crimes. As a result of Judge Wolf’s courage and persistence, the government has paid more than $100 million in claims to families of people murdered by informants shielded by the F.B.I. There is no good evidence that the F.B.I. has set up independent oversight of its informants program like what the judge called for. It’s high time.
It’s a good editorial that’s on the mark. Of course, in a just world, Judge Wolf’s picture should have been on the cover of the Times, not the fugitive who is thought to be responsible for countless crimes.
And in a just world, the corrupt FBI agent, John Connolly, would have had to pay for his own legal expenses. Even though he had more than a million dollars in assets (pensions, vacation home, power boat, etc), a federal magistrate said he was “indigent” and that taxpayers should pay for his legal defense. Not a public defender, mind you, but a top law firm in Boston. Just one of the many sordid aspects of the whole affair.
Here’s a link to Judge Wolf’s exhaustive ruling. Here’s a link to a Cato event that I hosted on this scandal.
FBI’s New Guidelines Further Loosen Constraints on Monitoring
The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.
This comes just three years after the last major revision of FBI manual, which empowered agents to employ a broad range of investigative techniques in exploratory “assessments” of citizens or domestic groups, even in the absence of allegations or evidence of wrongdoing, which are needed to open an “investigation.” The FBI assured Congress that it would conduct intensive training, and test agents to ensure that they understood the limits of the new authority—but the Inspector General found irregularities suggestive of widespread cheating on those tests.
Agents can already do quite a bit even without opening an “assessment”: They can consult the government’s own massive (and ever-growing) databases, or search the public Internet for “open source” intelligence. If, however, they want to start digging through state and local law enforcement records, or plumb the vast quantities of information held by commercial data aggregators like LexisNexis or Acxiom, they currently do have to open an assessment. Again, that doesn’t mean they’ve got to have evidence—or even an allegation—that their target is doing anything illegal, but it does mean they’ve got to create a paper trail and identify a legitimate purpose for their inquiries. That’s not much of a limitation, to be sure, but it does provide a strong deterrent to casual misuse of those databases for personal reasons. That paper trail means an agent who might be tempted to use government resources for personal ends—to check up on an ex or a new neighbor—has good reason to think twice.
Removing that check means there will be a lot more digging around in databases without any formal record of why. Even though most of those searches will be legitimate, that makes the abuses more likely to get lost in the crowd. Indeed, a series of reports by the Inspector General’s Office finding “widespread and serious misuse” of National Security Letters, noted that lax recordkeeping made it extremely difficult to accurately gauge the seriousness of the abuses or their true extent—and, of course, to hold the responsible parties accountable. Moreover, the most recent of those reports strongly suggests that agents engaged in illegal use of so-called “exigent letters” resisted the introduction of new records systems precisely because they knew (or at least suspected) their methods weren’t quite kosher.
The new rules will also permit agents to rifle through a person’s garbage when conducting an “assessment” of someone they’d like to recruit as an informant or mole. The reason, according to the Times, is that “they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.” Not keen into being dragooned into FBI service? Hope you don’t have anything embarrassing in your dumpster! Physical surveillance squads can only be assigned to a target once, for a limited time, in the course of an assessment under the current rules—that limit, too, falls by the wayside in the revised DIOG.
The Bureau characterizes the latest round of changes as “tweaks” to the most recent revisions. That probably understates the significance of some of the changes, but one reason it’s worrying to see another bundle of revisions so soon after the last overhaul is precisely that it’s awfully easy to slip a big aggregate change under the radar by breaking it up into a series of “tweaks.”
We’ve seen such a move already with respect to National Security Letters, which enable access to a wide array of sensitive financial, phone, and Internet records without a court order—as long as the information is deemed relevant to an “authorized investigation.” When Congress massively expanded the scope of these tools under the USA Patriot Act, legislators understood that to mean full investigations, which must be based on “specific facts” suggesting that a crime is being committed or that a threat to national security exists. Just two years later, the Attorney General’s guidelines were quietly changed to permit the use of NSLs during “preliminary” investigations, which need not meet that standard. Soon, more than half of the NSLs issued each year were used for such preliminary inquiries (though they aren’t available for mere “assessments”… yet).
The FBI, of course, prefers to emphasize all the restrictions that remain in place. We’ll probably have to wait a year or two to see which of those get “tweaked” away next.
‘I resent being conscripted as a secret informer for the government.’
The people who receive “national security letters” from the FBI are basically conscripted into serving as secret informers for the government. Some of those served happily comply and turn over whatever information the government is seeking, and sometimes even more. Others resent the conscription and the impact it has on their lives. Here’s an excerpt from an op-ed by Nick Merill, the president of a small internet access and consulting firm, about his experience:
Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.
I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.
Read the whole thing. Mr. Merill will be speaking at Cato Capitol Hill Briefing tomorrow and will provide us with an update on his case since his 2007 op-ed in the Washington Post.
For related Cato work, go here.
Political Trends and Gun Control Politics
From today’s Washington Post:
During his campaign, Obama supported reintroducing the lapsed assault weapon ban, promised to eliminate an amendment requiring the FBI to destroy records of gun buyers’ background checks and advocated closing the gun-show loophole. Since taking office, the president has done none of that, and before the midterm elections, he shelved a proposal requiring gun dealers to report bulk sales of high-powered semiautomatic rifles. In his State of the Union address, just weeks after the Giffords shooting in January, Obama made no mention of guns. … Other leading Democrats, even those traditionally willing to offer full-throated support for gun-control efforts, have grown surprisingly less vocal as they take on more of a national role.
The Dems have lost enthusiasm for gun control. No question. But seems to me that media interest is also a big factor here. When the news media turned from Gabrielle Giffords to Libya, that’s where Obama went next.
Cop-Cams on the Rise
The police in Austin, Texas will be testing nine different body-mounted cameras over the next 30 to 60 days. This is a positive development for both officers and citizens. It’s good legal defense for officers against false claims of excessive force and a training tool to show trainees best practices. It’s good incentive for officers to act within the bounds of the law. Video also makes for solid evidence in court. Many jurisdictions require law enforcement officers to record confessions and/or interrogations. Steve Chapman argued last year that the FBI should adopt such a policy.
Recording should be mandatory in SWAT raids, the most intense law enforcement encounters. I make the case for recording SWAT operations with Radley Balko and Clark Neily in this video:
Julian Sanchez Talks Online Privacy on Monday, March 28 at 1pm ET on Facebook
Please join us this coming Monday, March 28 at 1pm Eastern on our Facebook page for a live video presentation, powered by Livestream, from Cato research fellow Julian Sanchez on the current state of online privacy policy.
Here is a brief list of topics he’ll cover:
- An update on current challenges to overturn FISA, and what it means for you and me if those challenges succeed or fail
- How this relates to current and recent efforts to reauthorize the Patriot Act, including a recap of testimony Sanchez recently delivered to the U.S. Senate Subcommittee on Crime, Terrorism, and Homeland Security
- What’s on the FBI’s surveillance wish list
- Reflections on the idea of an “online privacy bill of rights“
We hope you can join us next Monday at 1pm Eastern for this event. Be sure to log in to Livestream with your Facebook account so you can chat with each other and submit questions–we’ll try to take as many as we can.
Not a fan of the Cato Institute yet? Join us below:
Terror Arrest Does Not Justify REAL ID Revival
The zeitgeist on Capitol Hill in Washington, D.C. may be for limited, constitutional government, but that doesn’t mean that big-government conservatives aren’t going to use the reprieve voters gave Republicans in the fall to once again advance big-government goals. On Monday, House Judiciary Committee Chairman Lamar Smith (R-Texas), Homeland Security Committee Chairman Peter King (R-N.Y.) and Crime, Terrorism, and Homeland Security Subcommittee Chairman James Sensenbrenner (R-Wisc.) sent a letter to Department of Homeland Security Secretary Janet Napolitano encouraging her to fully implement our national ID law, the REAL ID Act of 2005.
The deadline for state implementation of the national ID law lapsed nearly three years ago. Half the states in the country have affirmatively barred themselves from implementing REAL ID or they have passed resolutions objecting to the national ID law. But the Department of Homeland Security has repeatedly extended the deadline and reduced the compliance bar to suggest progress on the flagging national ID effort. With another faux implementation deadline looming in May, the DHS is almost certain to issue a blanket extension of the compliance deadline again soon.
Smith, King, and Sensenbrenner don’t want that to happen. They cite the arrest of Khalid Aldawsari in Texas as a reason for “immediate implementation of REAL ID.”
According to the government’s affidavit, Aldawsari planned to acquire a false birth certificate and multiple false drivers licenses, assumedly to assist in his getaway after executing his formative bombing plans. But if you read the affidavit, you can see just how remote and speculative his use of any false identification is compared to the real acts that go into his plans. You can also see the web of identifiers that law enforcement use to effectively track and surveil their targets, including phone numbers, license plates, physical addresses, immigration records, email addresses, and Internet Protocol addresses. Aldawsari was nowhere near slipping through the net, and having a false driver’s license would have made no difference after a North Carolina chemical supply company reported to the FBI his suspicious attempt to purchase the chemical phenol. Nor would false identification have made a difference had he succeeded in an attack of any significance.
Having a national ID is the fantastical way of addressing the fantastical part of Aldawsari’s alleged plot. Thankfully, the real plot was disrupted using real law enforcement techniques, which include the reporting of suspicious behavior and narrowly targeted, lawful surveillance.
Why the Senate’s Vote on the Patriot Act Is Actually Pretty Good News
Last night, By an overwhelming 86-to-12 margin, the Senate approved a temporary 90-day extension of three controversial provisions of the Patriot Act scheduled to sunset at the end of the month. The House just voted to move forward on a parallel extension bill, which will presumably pass easily. Because I’m seeing some civil libertarian folks online reacting with dismay to this development, I think it’s worth clarifying that this is relatively good news when you reflect on the outlook from just a couple of weeks ago.
The House has already approved a one-year extension that would plant the next reauthorization vote on the right eve of primary season in a Presidential election cycle, all but guaranteeing a round of empty demagoguery followed by another punt. As of last week, everyone expected the Senate to bring Sen. Dianne Feinstein’s three year reauthorization—which also extends the odious FISA Amendments Act of 2008—to the floor. The discussion on the Senate floor last night makes it clear that this didn’t happen because of pushback from legislators who were sick of kicking the can and wanted time to hold hearings on substantive reforms.
This is actually a better outcome than simply letting the three sunsetting powers lapse—which, realistically, was not going to happen anyway. First, because at least one of the expiring authorities, roving wiretaps, is a legitimate tool that ought to be available to intelligence investigators if it’s amended to eliminate the so-called “John Doe” loophole. Second, because while all three of these provisions have serious defects that raise legitimate concerns about the potential for abuse, they are collectively small beer compared with National Security Letters, which have already given rise to serious, widespread, and well documented abuses. One of the three sunsetting powers has never been used, and the other two are invoked a couple dozen times per year. All three involve court supervision. The FBI issues tens of thousands of National Security Letter requests each year, the majority targeting American citizens and legal residents, without any advance court approval. The vast majority of the thousands of Americans whose financial and telecommunications records are seized each year are almost certainly innocent of any wrongdoing, but their information is nevertheless retained indefinitely in government databases. With very few exceptions, these people will never learn that the government has been monitoring their financial transactions or communication patterns. Forcing a debate now on the expiring provisions opens a window for consideration of proposals to rein in NSLs—including a new sunset that would create pressure for continued scrutiny.
A new Pew poll released this week reports that Americans remain fairly evenly split on the question of whether the Patriot Act is “a necessary tool that helps the government find terrorists” or “goes too far and poses a threat to civil liberties.” (Perhaps unsurprisingly, with the change of administration, Democrats have become more supportive and Republicans somewhat more skeptical.) But this is actually a signally unhelpful way to frame debate about legislation encompassing hundreds of reforms to the byzantine statutory framework governing American intelligence investigations—more a toolbox than a “tool.” The question shouldn’t be whether you’re “for” or “against” it, but whether there are ways to narrow and focus particular authorities so that legitimate investigations can proceed without sweeping in so much information about innocent people. A three-month extension signals that Congress is finally, belatedly, ready to start having that conversation.
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