[Clips] A New Surveillance Act

[R. A. Hettinga]

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  Date: Wed, 15 Feb 2006 13:36:26 -0500
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  From: "R. A. Hettinga" <rah at shipwright.com>
  Subject: [Clips] A New Surveillance Act
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  <http://online.wsj.com/article_print/SB113996743590074183.html>

  The Wall Street Journal

  February 15, 2006


  COMMENTARY


  DOW JONES REPRINTS


  A New Surveillance Act

  By RICHARD A. POSNER

  February 15, 2006; Page A16

  The best, and probably the only, way to end the debate over the propriety
  of the National Security Agency's conducting electronic surveillance
  outside the framework of the Foreign Intelligence Surveillance Act is for
  Congress to enact a new statute.

  The administration is right to point out that FISA, enacted in 1978 -- long
  before the danger of global terrorism was recognized and electronic
  surveillance was transformed by the digital revolution -- is dangerously
  obsolete. It retains value as a framework for monitoring the communications
  of known terrorists, but it is hopeless as a framework for detecting
  terrorists. It requires that surveillance be conducted pursuant to warrants
  based on probable cause to believe that the target of surveillance is a
  terrorist, when the desperate need is to find out who is a terrorist.

  Critics of the NSA's program point out that surveillance not cabined by a
  probable-cause requirement produces many false positives (intercepts that
  prove upon investigation to have no intelligence value). That is not a
  sound criticism.

  National security intelligence is a search for the needle in a haystack.
  The intelligence services must cast a wide net with a fine mesh to catch
  the clues that may enable the next attack to be prevented. The initial
  trolling for clues is done by computer search programs, which do not invade
  privacy because search programs are not sentient beings. The programs pick
  out a tiny percentage of communications to be read by (human) intelligence
  officers, and a small subset of these will turn out to have intelligence
  value and spur an investigation. Some of these may be communications to
  which a U.S. citizen is a party.

  The program is vital, given the terrorist menace, which is real and not
  abating. It may be thanks to such programs, as well as to other
  counterterrorist operations, that we have been spared a repetition of 9/11.
  We mustn't let our guard down, basking in the false assurance created by
  the lapse of time since the last attack. But the legality of the program
  has been called into question, and fears have been expressed about its
  impact on civil liberties.

  These concerns can be addressed without gutting the program. But not by
  relaxing the standard for obtaining a warrant. Instead of requiring
  probable cause to believe the target a terrorist, FISA could be amended to
  require merely reasonable suspicion. But even that would be too
  restrictive. And the lower the standard for getting a warrant, the less of
  a filter a warrant requirement creates. If all that the government is
  required to state in its application is that it thinks an interception
  might yield intelligence information, judges will have no basis for
  refusing to grant the application.

  * * *

  It is a mistake to think that the only way to prevent abuses of a
  surveillance program is by requiring warrants. Congress could enact a
  statute that would subject warrantless electronic surveillance to tight
  oversight and specific legal controls, as follows:

  1. Oversight: The new statute would --

  (a) Create a steering committee for national security electronic
  surveillance composed of the attorney general, the director of national
  intelligence, the secretary of homeland security (chairman), and a senior
  or retired federal judge or justice appointed by the chief justice of the
  United States. The committee would monitor all such surveillance to assure
  compliance with the Constitution and laws.

  (b) Require the NSA to submit to the FISA court, every six months, a list
  of the names and other identifying information of all persons whose
  communications had been intercepted without a warrant in the previous six
  months, with a brief statement of why these individuals had been targeted.
  If the court concluded that an interception had been inappropriate, it
  would so report to the steering committee and the congressional
  intelligence committees.

  2. Specific controls: The statute would --

  (a) Authorize "national security electronic surveillance" outside FISA's
  existing framework, provided that Congress declared a national emergency
  and the president certified that such surveillance was necessary in the
  national interest. Warrants would continue to be required for all physical
  searches and for all electronic surveillance for which FISA's existing
  probable-cause requirement could be satisfied.

  (b) Define "national security" narrowly, excluding "ecoterrorism,"
  animal-rights terrorism, and other forms of political violence that, though
  criminal and deplorable, do not endanger the nation.

  (c) Sunset after five years, or sooner if the declaration of national
  emergency was rescinded.

  (d) Forbid any use of intercepted information for any purpose other than
  "national security" as defined in the statute (point b above). Thus the
  information could not be used as evidence or leads in a prosecution for
  ordinary crime. There would be heavy criminal penalties for violating this
  provision, to allay concern that "wild talk" picked up by electronic
  surveillance would lead to criminal investigations unrelated to national
  security.

  (e) Require responsible officials to certify to the FISA court annually
  that there had been no violations of the statute during the preceding year.
  False certification would be punishable as perjury.

  (f) Bar lawsuits challenging the legality of the NSA's current warrantless
  surveillance program. Such lawsuits would distract officials from their
  important duties, to no purpose given the new statute.

  Mr. Posner is a judge on the U.S. Seventh Circuit Court of Appeals and a
  senior lecturer in law at the University of Chicago Law School.

  --
  -----------------
  R. A. Hettinga <mailto: rah at ibuc.com>
  The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
  44 Farquhar Street, Boston, MA 02131 USA
  "... however it may deserve respect for its usefulness and antiquity,
  [predicting the end of the world] has not been found agreeable to
  experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'
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-- 
-----------------
R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'