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.

Wittgenstein, Private Language, and Secret Law is a post from Cato @ Liberty - Cato Institute Blog

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.

That’s not what Wyden and Udall are stressing here, however. Rather, they seem to be suggesting that the scope of the 215 authority itself has been secretly interpreted in a way that goes beyond the scope of the grand jury subpoena power. Now that ought to be striking, because the grand jury’s power to compel the production of documents really is quite broad. Yet, what Wyden and Udall appear to be suggesting is that there is some kind of limit or restriction that does apply to grand jury subpoenas, but has been held by the secret court not to apply to Section 215 orders. One possibility is that the FISC may have seen fit to issue prospective 215 orders, imposing an ongoing obligation on telecommunications companies or other recipients to keep producing records related to a target as they’re created, rather than being limited to records and documents already in existence. But given the quantity of evidence that already suggests the “Secret Patriot Act” involves location tracking, I find it suggestive that the very short list of specific substantive limits on grand jury subpoena power in the U.S. Attorneys’ Manual includes this:

It is improper to utilize the grand jury solely as an investigative aid in the search for a fugitive in whose testimony the grand jury has no interest. In re Pedro Archuleta, 432 F. Supp. 583 (S.D.N.Y. 1977); In re Wood, 430 F. Supp. 41 (S.D.N.Y. 1977), aff’d sub nom In re Cueto, 554 F.2d 14 (2d Cir. 1977). … Since indictments for unlawful flight are rarely sought, it would be improper to routinely use the grand jury in an effort to locate unlawful flight fugitives.

As the manual makes clear, the constraints on the power of the grand jury generally are determined by its purpose and function, but locating subjects for the benefit of law enforcement (rather than as a means of securing their testimony before the grand jury) is one of the few things so expressly and specifically excluded. Could this be what Wyden and Udall are obliquely referring to?

On a possibly related note, the Director of National Intelligence’s office sent Wyden and Udall a letter back in July rebuffing his request for information about the legal standard governing geolocation tracking by the intelligence community. While refusing to get into specifics, the letter explains that “there have been a diverse set of rulings concerning the quantum of evidence and the procedures required to obtain such evidence.” Now, a bit of common sense here: it is inconceivable that any judge on the secret court would not permit cell phone geolocation tracking of a target who was the subject of a full-blown FISA electronic surveillance warrant based on probable cause. There would be no “diversity” if the intelligence agencies were uniformly using only that procedure and that “quantum of evidence.” This claim only makes sense if the agencies have sought and, under some circumstances, obtained authorization to track cell phones pursuant to some other legal process requiring a lower evidentiary showing. (Again, you would not have “diversity” if the court had consistently responded to all such requests with: “No, get a warrant.”)

The options here are pretty limited, because the Foreign Intelligence Surveillance Act only provides for a few different kinds of orders to be issued by the FISC. There’s a full electronic surveillance warrant, requiring a probable cause showing that the target is an “agent of a foreign power.” There’s a warrant for physical search, with the same standard, which doesn’t seem likely to be relevant to geotracking. The only other real options are so-called “pen register” orders, which are used to obtain realtime communications metadata, and Section 215. Both require only that the information sought be “relevant” to an ongoing national security investigation. For pen registers, the applicant need only “certify” that this is the case, which leaves judges with little to do beyond rubber-stamping orders. Section 215 orders require a “statement of facts showing that there are reasonable grounds” to think the information sought is “relevant,” but the statute also provides that any records are automatically relevant if they pertain to a suspected “agent of a foreign power,” or to anyone “in contact with, or known to” such an agent, or to the “activities of a suspected agent of a foreign power who is the subject of [an] authorized investigation.” The only way there can logically be “a diverse set of rulings” about the “quantum of evidence and the procedures required” to conduct cell phone location tracking is if the secret court has, on at least some occasions, allowed it under one or both of those authorities. Perhaps ironically, then, this terse response is not far short of a confirmation.

In criminal investigations, as I noted in a previous post, the Justice Department normally seeks a full warrant in order to do highly accurate, 24-hour realtime location, though it is not clear they believe this is constitutionally required. With a court order for the production of records based on “specific and articulable facts,” they can get call records generally indicating the location of the nearest cell tower when a call was placed—a much less precise and intrusive form of tracking, but one that is increasingly revealing as providers store more data and install ever more cell towers. For realtime tracking that is less precise, they’ll often seek to bundle a records order with a pen register order, to create a “hybrid” tracking order. Judges are increasingly concluding that these standards do not adequately protect constitutional privacy interests, but you’d expect a”diverse set of rulings” if the FISC had adopted a roughly parallel set of rules—except, of course, that the standards for the equivalent orders on the intelligence side are a good deal more permissive. The bottom line, though, is that this makes it all but certain the intelligence agencies are secretly tracking people—and potentially large numbers of people—who it does not have probable cause to believe, and may not even suspect, are involved in terrorism or espionage. No wonder Wyden and Udall are concerned.

Stalking the Secret Patriot Act is a post from Cato @ Liberty - Cato Institute Blog

Yesterday, I mentioned a recent report from the Justice Department’s Office of the Inspector General on some potentially improper instances of FBI monitoring of domestic anti-war groups. It occurs to me that it also provides a useful data point that’s relevant to last week’s post about the pitfalls of thinking about the proper limits of government information gathering exclusively in terms of “privacy.”

As the report details, an agent in the FBI’s Pittsburgh office sent a confidential source to report on organizing meetings for anti-war marches held by the anarchist Pittsburgh Organizing Group (POG). The agent admitted to OIG that his motive was a general desire to cultivate an informant rather than any particular factually grounded investigative purpose. Unsurprisingly, reports generated by the source contained “no information remotely relevant to actual or potential criminal activity,” and at least one report was “limited to identifying information about the participants in a political discussion together with characterizations of the contents of the speech of the participants.” The agent dutifully recorded that at one such gathering “Meeting and discussion was primarily anti anything supported by the main stream [sic] American.”

Now, in fact, the OIG suggests that the retention in FBI records of personally identifiable information about citizens’ political speech, unrelated to any legitimate investigation into suspected violations of federal law, may well have violated the Privacy Act. But if we wanted to pick semantic nits, we could surely make the argument that this is not really an invasion of “privacy” as traditionally conceived—and certainly not as conceived by our courts. The gatherings don’t appear to have been very large—the source was able to get the names and ages of all present—but they were, in principle, announced on the Web and open to the public.

Fortunately, the top lawyer at the Pittsburgh office appears to have been duly appalled when he discovered what had been done, and made sure the agents in the office got a refresher training on the proper and improper uses of informants. But as a thought experiment, suppose this sort of thing were routine. Suppose that any “public” political meeting, at least for political views regarded as out of the mainstream, stood a good chance of being attended by a clandestine government informant, who would record the names of the participants and what each of them said, to be filed away in a database indefinitely.  Would you think twice before attending? If so, it suggests that the limits on state surveillance of the population appropriate to a free and democratic society are not exhausted by those aimed at protecting “privacy” in the familiar sense.

Speech, Privacy, and Government Infiltration is a post from Cato @ Liberty - Cato Institute Blog

There are too few periodical venues for good short fiction these days, so I’d normally be enthusiastic about the Wall Street Journal‘s decision to print works of fantasy. Unfortunately, they’ve opted to do so on their editorial page—starting with a long farrago of hypotheticals concerning the putative role of the Foreign Intelligence Surveillance Court in hindering the detection and apprehension of failed Times Square bomber Faisal Shahzad. In fairness to the editors, they acknowledge near the end of the piece that much of it is unvarnished speculation, but their flights of creative fancy extend to many claims presented as fact.

Let’s begin with the acknowledged fiction. The Journal editors wonder whether Shahzad might have been under surveillance before his botched Times Square attack, and posit that the NSA might have intercepted communications from “Waziristan Taliban talking about ‘our American brother Faisal,’ which could have been cross-referenced against Karachi flight manifests,” or “maybe Shahzad traded seemingly innocuous emails with Pakistani terrorists, and minimization precluded analysts from detecting a pattern.”  Anything is possible. But it’s a leap to make this inference merely because investigators appear to have had fairly specific knowledge about his contacts with terrorists after he had already been identified.  They would not have needed to “retroactively to reconstruct his activities from other already-gathered foreign wiretaps:” Once they had zeroed in on Shahzad, his calling patterns could have been reconstructed from phone company calling records whether or not he or his confederates were being targeted at the time the communications occurred, and indeed, those records could have been obtained by means of a National Security Letter without any oversight from the FISA Court.

This is part of a more general strategy we often see deployed by advocates of expanded surveillance powers. After the fact, one can always tell a story about how a known terrorist might have been detected by means of more unfettered spying authority, just as one can always tell a story about how any particular calamity would have been averted if the right sort of regulation were in place. Sometimes the story is even plausible. But if we look at the history of recent intelligence failures, it’s almost invariably the case that the real problem was the inability to connect the right set of data points from the flood of data already obtained, not insufficient ability to collect. The problem is that it’s easy and satisfying to call for legislation lifting the restraints on surveillance—and lifting still more when intelligence agencies fail to exhibit perfect clairvoyance—but difficult if not impossible, certainly for those of us without high-level clearances, to say anything useful about the internal process reforms that might help make better use of existing data. The pundit in me empathizes, but these just-so stories are a poor rationale for further diluting civil liberties protections.

Let’s move on to the unacknowledged fictions, of which there are many.  Perhaps most stunning is the claim that “U.S. intelligence-gathering capability has been substantially curtailed in stages over the last decade.” They mean, one supposes, that Congress ultimately imposed a patina of judicial oversight on the lawless program of warrantless wiretapping and data program authorized by the Bush administration in the aftermath of the 9/11 attacks. But the claim that somehow intelligence gathering is more constrained now than it was in 2000 just doesn’t pass the straight face test. In addition to the radical expansion of the aforementioned National Security Letter authorities, Congress approved roving wiretaps for domestic intelligence, broad FISA orders for the production of “any tangible thing,” so-called “sneak and peek” searches, looser restraints on existing FISA wiretap powers, and finally, with the FISA Amendments Act of 2008, executive power to authorize broad “programs” of surveillance without specified targets. In a handful of cases, legislators have rolled back slightly their initial grants of power or imposed some restraints on powers the executive arrogated to itself, but it is ludicrous to deny that the net trend over the decade has been toward more, rather than less, intelligence-gathering capability.

Speaking of executive arrogation of power, here’s how the Journal describes Bush’s warrantless Stellar Wind program:

Via executive order after 9/11, the Bush Administration created the covert Terrorist Surveillance Program. TSP allowed the National Security Agency to monitor the traffic and content of terrorist electronic communications overseas, unencumbered by FISA warrants even if one of the parties was in the U.S.

This is misleading.  There was no such thing as the “Terrorist Surveillance Program.”  That was a marketing term concocted after the fact to allow administration officials to narrowly discuss the components of Stellar Wind initially disclosed by the New York Times.  It allowed Alberto Gonzales to claim that there had been no serious internal dissent about the legality of “the program” by arbitrarily redefining it to exclude the parts that had caused the most controversy, such as the vast data mining effort that went far beyond suspected terrorists. It was this aspect of Stellar Wind, and not the monitoring of overseas communication, that occasioned the now-infamous confrontation at Attorney General John Ashcroft’s hospital bed described in the editorial’s subsequent paragraph. We continue:

In addition to excessive delays, the anonymous FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks. FISA was written in an analog era and meant to apply to domestic wiretaps in the context of the Cold War, not to limit what wiretaps were ever allowed.

Forgive me if I’m a broken record on this, but the persistence of the claim in that first sentence above is truly maddening.  It is false that “FISA judges demanded warrants even for foreign-to-foreign calls that were routed through U.S. switching networks.”  Anyone remotely familiar with the FISA law would have known it was false when it was first bandied about, and a Justice Department official confirmed that it was false two years ago. FISA has never required a warrant for foreign-to-foreign wire communications, wherever intercepted, though there was a narrower problem with some e-mail traffic.  To repeat the canard at this late date betrays either dishonesty or disqualifying ignorance of elementary facts. Further, while it’s true that a great deal of surveillance has always, by design, remained beyond the scope of FISA, it is clearly false that it was “meant to apply to domestic wiretaps” if by this we mean only “wiretaps where all parties to the communication are within the United States.” The plain text and legislative history of the law make it clear beyond any possible doubt that Congress meant to impose restraints on the acquisition of all U.S.-to-foreign wire communications, as well as radio communications targeting U.S. persons. (The legislative history further suggests that they had hoped to tighten up the restraints on radio communications, though technical considerations made it difficult to craft functional rules.) We continue:

The 2008 FISA law mandates “minimization” procedures to avoid targeting the communications of U.S. citizens or those that take place entirely within the U.S. As the NSA dragnet searches emails, mobile phone calls and the like, often it will pick up domestic information. Intelligence officials can analyze, retain and act on true smoking guns. But domestic intercepts must be effectively destroyed within 72 hours unless they indicate “a threat of death or serious bodily harm to any person” or constitute “evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.”

This means that potentially useful information must be discarded if it is too vague to obtain a traditional judicial warrant. Minimization is the FISA equivalent of a fishing license that requires throwing back catches that don’t meet the legal limit. Yet the nature of intelligence analysis is connecting small, suggestive and often scattered clues.

The kernel of truth here is that the FISA Amendments Act did impose some new constraints on the surveillance of Americans abroad. But the implication that “minimization” is some novel invention is just false. Minimization rules have always been part of FISA, and they exist precisely because the initial scope of FISA acquisition is so incredibly broad. And those minimization rules give investigators enormous latitude.  As the FISA Court itself explained in a rare published ruling:

Minimization is required only if the information “could not be” foreign intelligence. Thus, it is obvious that the standard for retention of FISA-acquired information is weighted heavily in favor of the government.

Similarly, the redaction of identifying information about U.S. persons is not required when that information is needed to properly interpret the intelligence, so the idea that analysts would have scrubbed mention of “our American brother Faisal” from an intercept of Taliban communications cannot be taken too seriously.  It’s not entirely clear what the editors are referring to when they say “domestic intercepts must be effectively destroyed within 72 hours:” Do they mean “inadvertent” intercepts of entirely domestic communications, or one-end domestic communications legitimately acquired under the FAA, or what? Either way, that’s not really consistent with what we know about FISA minimization in practice: At least as of 2005, it appears that “minimized” communications were at least sometimes retained in ultimately retrievable form, though not logged.  In any event, if I’m reading them correctly, the Journal is suggesting that NSA should be broadly sweeping up and retaining even the apparently innocent domestic communications of Americans, on the off chance that they might later prove useful? I can imagine being that consumed by terror, but I think I would be ashamed to admit it in public.  Moving on:

Meanwhile, the FISA court reported in April that the number of warrant applications fell to 1,376 in 2009, the lowest level since 2003. A change in quantity doesn’t necessarily mean a change in intelligence quality—though it might.

As it happens, I covered this in a post just the other day.  As a Justice Department official explained to the bloggers at Main Justice, the numerical decline is “due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage.”  Finally:

These constraints are being imposed at the same time that domestic terror plots linked to, or inspired by, foreigners are increasing. Our spooks did manage to pre-empt Najibullah Zazi and his co-conspirators in a plot to bomb New York subways, but they missed Shahzad and Nidal Hasan, as well as Umar Farouk Abdulmutallab’s attempt to bring down Flight 253 on Christmas Day.

Abdulmutallab was a non-U.S. person who didn’t set foot in the country until after setting his underpants aflame; there is no reason whatever to believe that FISA restrictions would have posed an obstacle to monitoring him. As for Nidal Hasan, investigators did intercept his e-mails with radical cleric Anwar al Awlaki. While it seems clear in retrospect that the decision not to investigate further was an error in judgment, they were obviously not destroyed after the fact, since they were later quoted in various press accounts. Maybe those exchanges really did seem legitimately related to Hasan’s research at the time, or maybe investigators missed some red flags. Either way, the part of the process the Journal is wringing its hands about worked: The intercepts were retained and disseminated to the Joint Terrorism Task Force, which concluded that Hasan was “not involved in terrorist activities or terrorist planning” and, along with Army officials, declined to open an investigation. Rending already gossamer-thin minimization requirements is not going to avoid errors of that sort.

The Journal closes out their fantasy by melodramatically asking “whether FISA is in practice giving jihadists a license to kill.” But the only “license” I see here is of the “creative” variety; should they revisit the topic in the future, the editors might consider taking less of it.

The Wall Street Journal’s Surveillance Fantasies is a post from Cato @ Liberty - Cato Institute Blog

As Tim Lynch notes, Judge Vaughn Walker has ruled in favor of the now-defunct Al-Haramain Islamic Foundation—unique among the many litigants who have tried to challenge the Bush-era program of warrantless wiretapping by the National Security Agency because they actually had evidence, in the form of a document accidentally delivered to foundation lawyers by the government itself, that their personnel had been targeted for eavesdropping.

Other efforts to get a court to review the program’s legality had been caught in a kind of catch-22: Plaintiffs who merely feared that their calls might be subject to NSA filtering and interception lacked standing to sue, because they couldn’t show a specific, concrete injury resulting from the program.

But, of course, information about exactly who has been wiretapped is a closely guarded state secret. So closely guarded, in fact, that the Justice Department was able to force the return of the document that exposed the wiretapping of Al-Haramain, and then get it barred from the court’s consideration as a “secret” even after it had been disclosed. (Contrast, incidentally, the Supreme Court’s jurisprudence on individual privacy rights, which often denies any legitimate expectation of privacy in information once revealed to a third party.) Al-Haramain finally prevailed because they were ultimately able to assemble evidence from the public record showing they’d been wiretapped, and the government declined to produce anything resembling a warrant for that surveillance.

If you read over the actual opinion, however it may seem a little anticlimactic—as though something is missing. The ruling concludes that there’s prima facie evidence that Al-Haramain and their lawyers were wiretapped, that the government has failed to produce a warrant, and that this violates the Foreign Intelligence Surveillance Act. But of course, there was never any question about that. Not even the most strident apologists for the NSA program denied that it contravened FISA; rather, they offered a series of rationalizations for why the president was entitled to disregard a federal statute.

There was the John Yoo argument that the president essentially becomes omnipotent during wartime, and that if we can shoot Taliban on a foreign battlefield, surely we can wiretap Americans at home if they seem vaguely Taliban-ish. Even under Bush, the Office of Legal Counsel soon backed away from such… creative… lines of argument. Instead, they relied on the post-9/11 Authorization for the Use of Military Force (AUMF) against al-Qaeda, claiming it had implicitly created a loophole in the FISA law. It was David Kris, now head of DOJ’s National Security Division, who most decisively blew that one out of the water, concluding that it was “essentially impossible” to sustain the government’s reading of the AUMF.

Yet you’ll note that none of these issues arise in Walker’s opinion, because the DOJ, in effect, refused to play. They resisted the court at every step, insisting that a program discussed at length on the front pages of newspapers for years now was so very secret that no aspect of it could be discussed even in a closed setting. They continued to insist on this in the face of repeated court rulings to the contrary. So while Al-Haramain has prevailed, there’s no ruling on the validity of any of those arguments. That’s why I think Marcy Wheeler is probably correct when she predicts that the government will simply take its lumps and pay damages rather than risk an appeal. For one, while Obama administration has been happy to invoke state secrecy as vigorously as its predecessor, it would obviously be somewhat embarrassing for Obama’s DOJ to parrot Bush’s substantive claims of near-limitless executive power. Perhaps more to the point, though, some of those legal arguments may still be operative in secret OLC memos. The FISA Amendments Act aimed to put the unlawful Bush program under court supervision, and even reasserted FISA’s language establishing it as the “exclusive means” for electronic surveillance, which would seem to drive a final stake in the heart of any argument based on the AUMF. But we ultimately don’t know what legal rationales they still consider operative, and it would surely be awkward to have an appellate court knock the legs out from under some of these secret memoranda.

None of this is to deny that the ruling is a big deal—if nothing else because it suggests that the government does not enjoy total carte blanche to shield lawbreaking from review with broad, bald assertions of privilege. But I also know that civil libertarians had hoped that the courts might be the only path to a more full accounting of—and accountability for—the domestic spying program. If the upshot of this is simply that the government must pay a few tens, or even hundreds of thousands of dollars in damages, it’s hard not to see the victory as something of a disappointment.

State Secrets, Courts, and NSA’s Illegal Wiretapping is a post from Cato @ Liberty - Cato Institute Blog

Can I send Time magazine the bill for the new crack in my desk and the splinters in my forehead? Because their latest excretion on the case of Colleen “Jihad Jane” LaRose and its relation to Patriot Act surveillance powers is absolutely maddening:

The Justice Department won’t say whether provisions of the Patriot Act were used to investigate and charge Colleen LaRose. But the FBI and U.S. prosecutors who charged the 46-year-old woman from Pennsburg, Pa., on Tuesday with conspiring with terrorists and pledging to commit murder in the name of jihad could well have used the Patriot Act’s fast access to her cell-phone records, hotel bills and rental-car contracts as they tracked her movements and contacts last year. But even if the law’s provisions weren’t directly used against her, the arrest of the woman who allegedly used the moniker “Jihad Jane” is a boost for the Patriot Act, Administration officials and Capitol Hill Democrats say. That’s because revelations of her alleged plot may give credibility to calls for even greater investigative powers for the FBI and law enforcement, including Republican proposals to expand certain surveillance techniques that are currently limited to targeting foreigners.

Sadly, this is practically a genre resorted to by lazy writers whenever a domestic terror investigation is making headlines. It consists of indulging in a lot of fuzzy speculation about how the Patriot Act might have been crucial—for all we know!—to a successful  investigation, even when every shred of available public evidence suggests otherwise.  My favorite exemplar of this genre comes from a Fox News piece penned by journalist-impersonator Cristina Corbin after the capture of some Brooklyn bomb plotters last spring, with the bold headline: “Patriot Act Likely Helped Thwart NYC Terror Plot, Security Experts Say.” The actual article contains nothing to justify the headline: It quotes some lawyers saying vague positive things about the Patriot Act, then tries to explain how the law expanded surveillance powers, but mostly botches the basic facts.  From what we know thanks to the work of real reporters,  the initial tip and the key evidence in that case came from a human infiltrator who steered the plotters to locations that had been physically bugged, not new Patriot tools.

Of course, it may well be that National Security Letters or other Patriot powers were invoked at some point in this investigation—the question is whether there’s any good reason to suspect they made an important difference. And that seems highly dubious. LaRose’s indictment cites the content of private communications, which probably would have been obtained using a boring old probable cause warrant—and the standard for that is far higher than for a traditional pen/trap order, which would have enabled them to be getting much faster access to more comprehensive cell records. Maybe earlier on, then, when they were compiling the evidence for those tools?  But as several reports on the investigation have noted, “Jihad Jane” was being tracked online by a groups of anti-jihadi amateurs some three years ago. As a member of one group writes sarcastically on the site Jawa Report, the “super sekrit” surveillance tool they used to keep abreast of LaRose’s increasingly disturbing activities was… Google. I’m going to go out on a limb and say the FBI could’ve handled this one with pre-Patriot authority, and a fortiori with Patriot authority restrained by some common-sense civil liberties safeguards.

What’s a little more unusual is to see this segue into the kind of argument we usually see in the wake of an intelligence failure, where the case is then seen as self-evidently justifying still more intrusive surveillance powers, in this case the expansion of the “lone wolf” authority currently applicable only to foreigners, allowing extraordinarily broad and secretive FISA surveillance to be conducted against people with no actual ties to a terror group or other “foreign power.” Yet as Time itself notes:

In fact, Justice Department terrorism experts are privately unimpressed by LaRose. Hers was not a particularly threatening plot, they say, and she was not using any of the more challenging counter-surveillance measures that more experienced jihadis, let alone foreign intelligence agents, use.

Which, of course, is a big part of the reason we have a separate system for dealing with agents of foreign powers: They are typically trained in counterintelligence tradecraft with access to resources and networks far beyond those of ordinary nuts. What possible support can LaRose’s case provide for the proposition that these industrial-strength tools should now be turned on American citizens?  They caught her—and without much trouble, by the looks of it. Sure, this domestic nut may have invoked to Islamist ideology rather than the commands of Sam the Dog or anti-Semitic conspiracy theories… but so what? She’s still one more moderately dangerous unhinged American in a country that has its fair share, and has been dealing with them pretty well under the auspices of Title III for a good while now.

Every Time I Say “Terrorism,” the Patriot Act Gets More Awesome is a post from Cato @ Liberty - Cato Institute Blog

The invaluable Chris Soghoian has posted some illuminating—and sobering—information on the scope of surveillance being carried out with the assistance of telecommunications providers.  The entire panel discussion from this year’s ISS World surveillance conference is well worth listening to in full, but surely the most striking item is a direct quotation from Sprint’s head of electronic surveillance:

[M]y major concern is the volume of requests. We have a lot of things that are automated but that’s just scratching the surface. One of the things, like with our GPS tool. We turned it on the web interface for law enforcement about one year ago last month, and we just passed 8 million requests. So there is no way on earth my team could have handled 8 million requests from law enforcement, just for GPS alone. So the tool has just really caught on fire with law enforcement. They also love that it is extremely inexpensive to operate and easy, so, just the sheer volume of requests they anticipate us automating other features, and I just don’t know how we’ll handle the millions and millions of requests that are going to come in.

To be clear, that doesn’t mean they are giving law enforcement geolocation data on 8 million people. He’s talking about the wonderful automated backend Sprint runs for law enforcement, LSite, which allows investigators to rapidly retrieve information directly, without the burden of having to get a human being to respond to every specific request for data.  Rather, says Sprint, each of those 8 million requests represents a time when an FBI computer or agent pulled up a target’s location data using their portal or API. (I don’t think you can Tweet subpoenas yet.)  For an investigation whose targets are under ongoing realtime surveillance over a period of weeks or months, that could very well add up to hundreds or thousands of requests for a few individuals. So those 8 million data requests, according to a Sprint representative in the comments, actually “only” represent “several thousand” discrete cases.

As Kevin Bankston argues, that’s not entirely comforting. The Justice Department, Soghoian points out, is badly delinquent in reporting on its use of pen/trap orders, which are generally used to track communications routing information like phone numbers and IP addresses, but are likely to be increasingly used for location tracking. And recent changes in the law may have made it easier for intelligence agencies to turn cell phones into tracking devices.  In the criminal context, the legal process for getting geolocation information depends on a variety of things—different districts have come up with different standards, and it matters whether investigators want historical records about a subject or ongoing access to location info in real time. Some courts have ruled that a full-blown warrant is required in some circumstances, in other cases a “hybrid” order consisting of a pen/trap order and a 2703(d) order. But a passage from an Inspector General’s report suggests that the 2005 PATRIOT reauthorization may have made it easier to obtain location data:

After passage of the Reauthorization Act on March 9, 2006, combination orders became unnecessary for subscriber information and [REDACTED PHRASE]. Section 128 of the Reauthorization Act amended the FISA statute to authorize subscriber information to be provided in response to a pen register/trap and trace order. Therefore, combination orders for subscriber information were no longer necessary. In addition, OIPR determined that substantive amendments to the statute undermined the legal basis for which OIPR had received authorization [REDACTED PHRASE] from the FISA Court. Therefore, OIPR decided not to request [REDACTED PHRASE] pursuant to Section 215 until it re-briefed the issue for the FISA Court. As a result, in 2006 combination orders were submitted to the FISA Court only from January 1, 2006, through March 8, 2006.

The new statutory language permits FISA pen/traps to get more information than is allowed under a traditional criminal pen/trap, with a lower standard of review, including “any temporarily assigned network address or associated routing or transmission information.” Bear in mind that it would have made sense to rely on a 215 order only if the information sought was more extensive than what could be obtained using a National Security Letter, which requires no judicial approval. That makes it quite likely that it’s become legally easier to transform a cell phone into a tracking device even as providers are making it point-and-click simple to log into their servers and submit automated location queries.  So it’s become much more  urgent that the Justice Department start living up to its obligation to start telling us how often they’re using these souped-up pen/traps, and how many people are affected.  In congressional debates, pen/trap orders are invariably mischaracterized as minimally intrusive, providing little more than the list of times and phone numbers they produced 30 years ago.  If they’re turning into a plug-and-play solution for lojacking the population, Americans ought to know about it.

If you’re interested enough in this stuff to have made it through that discussion, incidentally, come check out our debate at Cato this afternoon, either in the flesh or via webcast. There will be a simultaneous “tweetchat” hosted by the folks at Get FISA Right.

Three Keys to Surveillance Success: Location, Location, Location is a post from Cato @ Liberty - Cato Institute Blog

The Council on Foreign Relations’ Steven Simon makes a difficult case, and he makes it well, regarding the Justice Department’s decision to try Khalid Shaikh Mohammed in a civilian court in New York City. I agree with his bottom line:

no trial can provide closure for the traumas of that day. But a judgment in New York, where the greatest suffering was inflicted, will remind us both of the narrow viciousness of the terrorists’ cause and of the enduring strength of our own values.

I say again, this is not an easy case to make, and not just because of the emotions involved. Most people have already made up their mind that 1) KSM is undeserving of such treatment (the same could be said of most mass murderers); 2) that the risks posed to national security by a public trial (including the possibility of an acquittal and the potential disclosure of sensitive information) are not outweighed by the benefits; and 3) that AG Eric Holder made this decision in a haphazard manner, and for all the wrong reasons.

But I think that Simon renders a great service in making Holder’s argument, and, indeed, in making it better than the AG did.

My objectivity can be called into question: Steven has spoken at Cato a few times, and he was and is a participant in our ambitious counterterrorism project. I have enormous respect for his expertise on such matters.  

But I submit that anyone who reads Simon’s op-ed with an open mind must concede at least some of his points, and therefore further conclude that some of the criticisms of the decision are unfair. That does not mean that Simon will ultimately change a lot of minds. One might still conclude that, on balance, the DoJ’s decision was unwise, and that KSM should have been tried by a military tribunal, or merely detained forever. In truth, I was leaning in that direction before I read the piece.

But, on reflection, my confidence in our system of government and in the rule of law leads me to believe that Simon has it right. To the extent that KSM is given a forum for propagandizing on behalf of al Qaeda, the net effect of his rantings will be to remind the entire world that AQ is nothing more than a bunch of self-important, murderous SOBs who kill innocent people.

Nothing more, nothing less.

Khalid Shaikh Mohammed on Trial is a post from Cato @ Liberty - Cato Institute Blog

This is a reminder, citizen: Only cranks worry about vastly increased governmental power to gather transactional data about Americans’ online behavior. Why, just last week, Rep. Lamar Smith (R-TX) informed us that there has not been any “demonstrated or recent abuse” of such authority by means of National Security Letters, which permit the FBI to obtain many telecommunications records without court order. I mean, the last Inspector General report finding widespread and systemic abuse of those came out, like, over a year ago! And as defenders of expanded NSL powers often remind us, similar records can often be obtained by grand jury subpoena.

Subpoenas like, for instance, the one issued last year seeking the complete traffic logs of the left-wing site Indymedia for a particular day. According to tech journo Declan McCullah:

It instructed [System administrator Kristina] Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.

The sweeping request came with a gag order prohibiting Clair from talking about it. (As a constitutional matter, courts have found that recipients of such orders must at least be allowed to discuss them with attorneys in order to seek advise about their legality, but the subpoena contained no notice of that fact.) Justice Department officials tell McCullagh that the request was never reviewed directly by the Attorney General, as is normally required when information is sought from a press organization. Clair did tell attorneys at the Electronic Frontier Foundation, and  when they wrote to U.S. Attorney Timothy Morrison questioning the propriety of the request, it was promptly withdrawn. EFF’s Kevin Bankston explains the legal problems with the subpoena at length.

Perhaps ironically, the targeting of Indymedia, which is about as far left as news sites get, may finally hep the populist right to the perils of the burgeoning surveillance state. It seems to have piqued Glenn Beck’s interest, and McCullagh went on Lou Dobbs’ show to talk about the story. Thus far, the approved conservative position appears to have been that Barack Obama is some kind of ruthless Stalinist with a secret plan to turn the United States into a massive gulag—but under no circumstances should there be any additional checks on his administration’s domestic spying powers.  This always struck me as both incoherent and a tragic waste of paranoia. Now that we’ve had a rather public reminder that such powers can be used to compile databases of people with politically unorthodox browsing habits, perhaps Beck—who seems to be something of an amateur historian—will take some time to delve into the story of COINTELPRO and other related projects our intelligence community busied itself with before we established an architecture of surveillance oversight in the late ’70s.

You know, the one we’ve spent the past eight years dismantling.

Who Reads the Readers? is a post from Cato @ Liberty - Cato Institute Blog

I appeared on the CNN program Lou Dobbs Tonight last Thursday (Oct. 22) to discuss the medical marijuana issue and the drug war in general.  There were two other guests: Peter Moskos from John Jay College and the organization Law Enforcement Against Prohibition (LEAP) and Barry McCaffrey, retired General of the U.S. Army and former “Drug Czar” under President Bill Clinton.

I was really astonished by the doubletalk coming from McCaffrey.  Watch the clip below and then I’ll explain two of the worst examples so you can come to your own conclusions about this guy.

Doubletalk: Example One:

Tim Lynch: “Some states have changed their marijuana laws to allow patients who are suffering from cancer and AIDS–people who want to use marijuana for medical reasons–they’re exempt from the law. But there’s a clash between the laws of the state governments and the federal government. The federal government has come in and said, ‘We’re going to threaten people with federal prosecution, bring them into federal court.’ And what the [new memo from the Obama Justice Department] does this week is change federal policy. Basically, Attorney General Eric Holder is saying, ‘Look, for people, genuine patients–people suffering from cancer, people suffering from AIDS–these people are now off limits to federal prosecutors.’ It’s a very small step in the direction of reform.”

Now comes Barry McCaffrey: “There is zero truth to the fact that the Drug Enforcement Administration or any other federal law enforcement ever threatened care-givers or individual patients. That’s fantasy!”

Zero truth? Fantasy?  This report from USA Today tells the story of several patients who were harassed and threatened by federal agents. Excerpt:  ”In August 2002, federal agents seized six plants from [Diane] Monson’s home and destroyed them.”

This report from the San Francisco Chronicle tells the story of Bryan Epis and Ed Rosenthal.  Both men, in separate incidents, were raided, arrested, and prosecuted by federal officials.  The feds called them “drug dealers.”  When the cases came to trial, both men were eager to inform their juries about the actual circumstances surrounding their cases–but they were not allowed to convey those circumstances to jurors.  Federal prosecutors insisted that information concerning the medical aspect of marijuana was “irrelevant.”   Both men were convicted and jailed.

This report from the New York Times tells readers about the death of Peter McWilliams.  The feds said he was a “drug dealer.”  McWilliams also wanted to tell his story to a jury, but pled guilty when the judge told him he would not be allowed to inform the jury of his medical condition.  Excerpt:  “At his death, Mr. McWilliams was waiting to be sentenced in federal court after being convicted of having conspired to possess, manufacture and sell marijuana…. They pleaded guilty to the charge last year after United States District Judge George H. King ruled that they could not use California’s medical marijuana initiative, Proposition 215, as a defense, or even tell the jury of the initiative’s existence and their own medical conditions.”  The late William F. Buckley wrote about McWilliams’ case here.

Imagine what Diane Monson, Bryan Epis, Ed Rosenthal, and Peter McWilliams (and others) would have thought had they seen a former top official claim that federal officials never threatened patients or caregivers?!

Doubletalk: Example Two:

Tim Lynch: “After California changed its laws to allow the medical use of marijuana, [General Barry McCaffrey] was the Drug Czar at the time and he came in taking a very hard line. The Clinton administration’s position was that they were going to threaten doctors simply for discussing the pros and cons of using marijuana with their patients. That policy was fought over in the courts and [the Clinton/McCaffrey] policy was later declared illegal and unconstitutional for violating the free speech of doctors and for interfering with the doctor-patient relationship. This was the ruling by the Ninth Circuit Court of Appeals in a case called Conant – “C-O-N-A-N-T.”

Lou Dobbs: “The ruling stood in the Ninth Circuit?”

Tim Lynch: “Yes, it did.”

Now comes Barry McCaffrey: “That’s all nonsense!”

Nonsense?  Really?

Go here to read the New York Times story about McCaffrey’s hard-line policy.

The Conant ruling can be found here.  The name of the case was initially Conant v. McCaffrey, but as the months passed and the case worked its way up to the appeals court, the case was renamed Conant v. Walters because Bush entered the White House and he appointed his own drug czar, John Walters, who maintained the hard line policy initiated by Clinton and McCaffrey.

I should also mention that Conant was not an obscure case that McCaffrey could have somehow ”missed.”  Here’s a snippet from another New York Times report:  “The Supreme Court, in a silent rebuff on Tuesday to federal policy on medical marijuana, let stand an appeals court ruling that doctors may not be investigated, threatened or punished by federal regulators for recommending marijuana as a medical treatment for their patients.”  The point here is that the case was covered by major media as it unfolded.

When our television segment concluded, Lou Dobbs asked me some follow-up questions and asked me to supply additional info to one of his producers, which I was happy to do.

Whatever one’s view happens to be on drug policy, the historical record is there for any fair-minded person to see — and yet McCaffrey looked right into the camera and denied  past actions by himself and other federal agents.  And he didn’t say, “I think that’s wrong” or “I don’t remember it that way.”  He baldly asserted that my recounting of the facts was “nonsense.”   Now I suppose some will say that falsehoods are spoken on TV fairly often–maybe, I’m not sure–but it is distressing that this character held the posts that he did and that he continues to instruct cadets at West Point!

My fellow panelist, Peter Moskos, has a related blog post here and he had a good piece published in the Washington Post just yesterday.  For more Cato scholarship on drug policy, go here.

Fact-checking Drug Czar Barry McCaffrey is a post from Cato @ Liberty - Cato Institute Blog

The Department of Justice just invalidated a move by the residents of Kinston, North Carolina, to have non-partisan local elections. Rationale?

The Justice Department’s ruling, which affects races for City Council and mayor, went so far as to say partisan elections are needed so that black voters can elect their “candidates of choice” – identified by the department as those who are Democrats and almost exclusively black.

The department ruled that white voters in Kinston will vote for blacks only if they are Democrats and that therefore the city cannot get rid of party affiliations for local elections because that would violate black voters’ right to elect the candidates they want.

This, coming from the same Department of Justice officials that wouldn’t know a civil rights violation if it picked up a club and barred them access to a polling place.

Department of Bias is a post from Cato @ Liberty - Cato Institute Blog

Despite Barack Obama’s frequent paeans to the value of transparency during the presidential campaign, his Justice Department has incensed civil liberties advocates by parroting the Bush administration’s broad invocations of the “state secrets privilege” in an effort to torpedo lawsuits challenging controversial interrogation and surveillance policies. Though in many cases the underlying facts have already been widely reported, DOJ lawyers implausibly claimed, not merely that particular classified information should not be aired in open court, but that any discussion of the CIA’s “extraordinary rendition” of detainees to torture-friendly regimes, or of the NSA’s warrantless wiretapping, would imperil national security.

That may—emphasis on may—finally begin to change as of October 1st, when new guidelines for the invocation of the privilege issued by Attorney General Eric Holder kick in. Part of the change is procedural: state secrets claims will need to go through a review board and secure the personal approval of the Attorney General. Substantively, the new rules raise the bar for assertions of privilege by requiring attorneys to provide courts with specific evidence showing reason to expect disclosure would result in “significant harm” to national security. Moreover, those assertions would have to be narrowly tailored so as to allow cases to proceed on the basis of as much information as can safely be disclosed.

That’s the theory, at any rate. The ACLU is skeptical, and argues that relying on AG guidelines to curb state secrets overreach is like relying on the fox to guard the hen house. And indeed, hours after the announcement of the new guidelines—admittedly not yet in effect—government attorneys were singing the state secrets song in a continuing effort to get a suit over allegations of illegal wiretapping tossed. The cynical read here is that the new guidelines are meant to mollify legislators contemplating statutory limits on state secrets claims while preserving executive discretion to continue making precisely the same arguments, so long as they add the word “significant” and jump through a few extra hoops. Presumably we’ll start to see how serious they are come October. And as for those proposed statutory limits, if the new administration’s commitment to greater  accountability is genuine, they should now have no objection to formal rules that simply reinforce the procedures and principles they’ve voluntarily embraced.

State Secrets, State Secrets Are No Fun is a post from Cato @ Liberty - Cato Institute Blog

As Tim Lynch noted earlier this week, Barack Obama’s justice department has come out in favor of renewing three controversial PATRIOT Act provisions—on face another in a train of disappointments for anyone who’d hoped some of those broad executive branch surveillance powers might depart with the Bush administration.

But there is a potential silver lining: In the letter to Sen. Patrick Leahy (D-VT) making the case for renewal, the Justice Department also declares its openness to “modifications” of those provisions designed to provide checks and balances, provided they don’t undermine investigations. While the popular press has always framed the fight as being “supporters” and “opponents” of the PATRIOT Act, the problem with many of the law’s provisions is not that the powers they grant are inherently awful, but that they lack necessary constraints and oversight mechanisms.

Consider the much-contested “roving wiretap” provision allowing warrants under the Foreign Intelligence Surveillance Act to cover all the communications devices a target might use without specifying the facilities to be monitored in advance—at least in cases where there are specific facts supporting the belief that a target is likely to take measures to thwart traditional surveillance. The objection to this provision is not that intelligence officers should never be allowed to obtain roving warrants, which also exist in the law governing ordinary law enforcement wiretaps. The issue is that FISA is fairly loosey-goosey about the specification of “targets”—they can be described rather than identified. That flexibility may make some sense in the foreign intel context, but when you combine it with similar flexibility in the specification of the facility to be monitored, you get something that looks a heck of a lot like a general warrant. It’s one thing to say “we have evidence this particular phone line and e-mail account are being used by terrorists, though we don’t know who they are” or “we have evidence this person is a terrorist, but he keeps changing phones.” It’s another—and should not be possible—to mock traditional particularity requirements by obtaining a warrant to tap someone on some line, to be determined. FISA warrants should “rove” over persons or facilities, but never both.

The DOJ letter describes the so-called “Lone Wolf” amendment to FISA as simply allowing surveillance of targets who are agents of foreign powers without having identified which foreign power (i.e. which particular terrorist group) they’re working for. They say they’ve never invoked this ability, but want to keep it in reserve. If that description were accurate, I’d say let them. But as currently written, the “lone wolf” language potentially covers people who are really conventional domestic threats with only the most tenuous international ties—the DOJ letter alludes to people who “self-radicalize” by reading online propaganda, but are not actually agents of a foreign group at all.

Finally, there’s the “business records” provision, which actually covers the seizure of any “tangible thing.”  The problems with this one probably deserve their own post, and ideally you’d just go through the ordinary warrant procedure for this. But at the very, very least there should be some more specific nexus to a particular foreign target than “relevance” to a ongoing investigation before an order issues. The gag orders that automatically accompany these document requests also require more robust judicial scrutiny.

Some of these fixes—and quite a few other salutary reforms besides—appear to be part of the JUSTICE Act which I see that Sen. Russ Feingold (D-WI) introduced earlier this afternoon.  I’ll take a closer look at the provisions of that bill in a post tomorrow.

A Chance to Fix the PATRIOT Act? is a post from Cato @ Liberty - Cato Institute Blog

Glenn Greenwald writes,

By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects — Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force — showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama's own White House counsel Greg Craig told Jane Mayer back in February that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"; New York Times reporter William Glaberson wrote that "Obama's detention policy "would be a departure from the way this country sees itself"; Sen. Russ Feingold warned that it "violates basic American values," "is likely unconstitutional," and "is a hallmark of abusive systems that we have historically criticized around the world"; The New York Times' Bob Herbert said that "Americans should recoil as one against the idea of preventive detention"; and the Obama policy's most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].

According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are — sadly — “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney's preventive detention scheme] might be crafted with bipartisan support.”

…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides — between Tom Coburn and Russ Feingold — then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.

No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.

All that such a policy does is to move the act of judging back one level — and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.

It is no improvement to shift the fundamental problem of justice to a different location — out of open courtrooms, out of review, out of established legal tradition — and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.

But oddly, Professor Chesney is actually right in one respect:

The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.

Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.

True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.

Preventive Detention: What Would Thomas Jefferson Do? is a post from Cato @ Liberty - Cato Institute Blog

The Justice Department is on the job.  Perceiving a dire threat against the American republic, they have acted to keep America safe.  As my colleague Sallie James noted yesterday, they are stealing confiscating the money of Internet gamblers.

Reports Richard Morrison of our friends at the Competitive Enterprise Institute:

Just when it seemed that those in power had begun to think about Internet poker in a positive light, the Department of Justice throws us back into the digital dark ages by seizing $34 million in funds rightfully owned by around 27,000 online poker players. The government is alleging that the funds are associated with illegal online gambling and money laundering.

In a letter sent to Alliance Bank, the prosecutor said accounts held by payment processor Allied Systems Inc. are subject to seizure and forfeiture “because they constitute property involved in money laundering transactions and illegal gambling offenses.” The letter was signed by Arlo Devlin-Brown, assistant U.S. attorney for the Southern District of New York.

Knowing that the federal government is busy violating our privacy and grabbing our money to save us from ourselves just makes one feel great to be an American

America Threatened as Never Before is a post from Cato @ Liberty - Cato Institute Blog

 The current Attorney General, Eric Holder, left DC’s Covington and Burling to return to the Justice Department, where he held a senior post during the Clinton years.  Holder’s mission is to supposedly ”rein in the free market excesses of the last eight years.”  Bush’s people are done with their own crackdown and are now returning to DC’s big law firms to warn their client business firms about the coming crackdown by Holder’s prosecutors.  This is sorta like the GOP legislators who are now trying to lodge complaints about Obama’s spending.  Despite the rhetoric, both sides aggrandize federal power and then enrich themselves (pdf) while advising businesspeople on how to comply with myriad regulations  from the alphabet agencies.

For related Cato work, go here and here.

Prosperity in Washington is a post from Cato @ Liberty - Cato Institute Blog