Richard Posner on warrantless surveillance

Judge Richard Posner, an esteemed jurist and author, defends the NSA warrantless wiretaps program in The New Republic (registration required).

If I understand the judge correctly, he says that the program may well be illegal if it violages FISA, but that the important issue is whether it is effective and necessary.

Writes Posner:

Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation’s defense, and its impingements on civil liberties are slight. That would not prove the program’s legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law–or how to change the program to make it comply with the law–without destroying its effectiveness. Similarly, if the program’s contribution to national security were negligible–as we learn, also from the Times, that some FBI personnel are indiscreetly whispering–and it is undermining our civil liberties, this would push the legal analysis in the opposite direction.

….

The next terrorist attack (if there is one) will likely be mounted, as the last one was, from within the United States but orchestrated by leaders safely ensconced abroad. So suppose the NSA learns the phone number of a suspected terrorist in a foreign country. If the NSA just wants to listen to his calls to others abroad, FISAdoesn’t require a warrant. But it does if either (a) one party to the call is in the United States and the interception takes place here or (b) the party on the U.S. side of the conversation is a “U.S person”–primarily either a citizen or a permanent resident. If both parties are in the United States, no warrant can be issued; interception is prohibited. The problem with FISA is that, in order to get a warrant, the government must have grounds to believe the “U.S. person” it wishes to monitor is a foreign spy or a terrorist. Even if a person is here on a student or tourist visa, or on no visa, the government can’t get a warrant to find out whether he is a terrorist; it must already have a reason to believe he is one.

As far as an outsider can tell, the NSA program is designed to fill these gaps by conducting warrantless interceptions of communications in which one party is in the United States (whether or not he is a “U.S. person”) and the other party is abroad and suspected of being a terrorist. But there may be more to the program. Once a phone number in the United States was discovered to have been called by a terrorist suspect abroad, the NSA would probably want to conduct a computer search of all international calls to and from that local number for suspicious patterns or content. A computer search does not invade privacy or violate FISA, because a computer program is not a sentient being. But, if the program picked out a conversation that seemed likely to have intelligence value and an intelligence officer wanted to scrutinize it, he would come up against FISA’s limitations. One can imagine an even broader surveillance program, in which all electronic communications were scanned by computers for suspicious messages that would then be scrutinized by an intelligence officer, but, again, he would be operating outside the framework created by FISA.

FISA’s limitations are borrowed from law enforcement. When crimes are committed, there are usually suspects, and electronic surveillance can be used to nail them. In counterterrorist intelligence, you don’t know whom to suspect–you need surveillance to find out. The recent leaks from within the FBI, expressing skepticism about the NSA program, reflect the FBI’s continuing inability to internalize intelligence values. Criminal investigations are narrowly focused and usually fruitful. Intelligence is a search for the needle in the haystack. FBI agents don’t like being asked to chase down clues gleaned from the NSA’s interceptions, because 99 out of 100 (maybe even a higher percentage) turn out to lead nowhere. The agents think there are better uses of their time. Maybe so. But maybe we simply don’t have enough intelligence officers working on domestic threats.

….

What seems clear is that FISA does not provide an adequate framework for counterterrorist intelligence. The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon. From a national security standpoint, the statute might as well have been enacted in 1878 to regulate the interception of telegrams. In the words of General Michael Hayden, director of NSA on September 11 and now the principal deputy director of national intelligence, the NSA program is designed to “detect and prevent,” whereas FISA was built for long-term coverage against known agents of an enemy power.”

In the immediate aftermath of the September 11 attacks, Hayden, on his own initiative, expanded electronic surveillance by NSA without seeking FISA warrants. The United States had been invaded. There was fear of follow-up attacks by terrorists who might already be in the country. Hayden’s initiative was within his military authority. But, if a provision of Fthat allows electronic surveillance without a warrant for up to 15 days following a declaration of war is taken literally (and I am not opining on whether it should or shouldn’t be; I am not offering any legal opinions), Hayden was supposed to wait at least until September 14 to begin warrantless surveillance. That was the date on which Congress promulgated the Authorization for Use of Military Force, which the administration considers a declaration of war against Al Qaeda. Yet the need for such surveillance was at its most acute on September 11. And, if a war is raging inside the United States on the sixteenth day after an invasion begins and it is a matter of military necessity to continue warrantless interceptions of enemy communications with people in the United States, would anyone think the 15-day rule prohibitive?

We must not ignore the costs to liberty and privacy of intercepting phone calls and other electronic communications. No one wants strangers eavesdropping on his personal conversations. And wiretapping programs have been abused in the past. But, since the principal fear most people have of eavesdropping is what the government might do with the information, maybe we can have our cake and eat it, too: Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security. So, if the government discovered, in the course of surveillance, that an American was not a terrorist but was evading income tax, it could not use the discovery to prosecute him for tax evasion or sue him for back taxes. No such rule currently exists. But such a rule (if honored) would make more sense than requiring warrants for electronic surveillance.

Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets. Warrants are for situations where the police should not be allowed to do something (like search one’s home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove.

Posner makes some good points, particularly about the dubiousness of the FBI’s complaints about leads that go nowhere. But as some of the commenters on the TNR site pointed out, his argument begs the question: if the law is so inadquate to current needs, then why not actually change the law? I really don’t buy the idea that this would somehow tip the terrorists off to what we’re doing (Al Qaeda operatives would have to be pretty dumb to think they at least may be under surveillance, and I suspect they don’t have much confidence in American intelligence agencies’ strict abidance by the law).

Secondly — and knowledgeable people are welcome to correct me on this — I’m not at all sure that intelligence works the way Posner thinks it does: i.e., that it’s a random search for a needle in the haystack rather than the pursuit of some actual leads (e.g. observed behavior that leads to suspicion). Posner seems to be offering a prescription for extremely vast and comprehensive surveillance for the purpose of preventing terrorist acts — basically the electronic equivalent of living under the constant gaze of surveillance cameras not only in the streets but in our homes. I’m also not sure that the only fear people have is surveillance data being legally used against them. There is also the risk of such data being misused by unscrupulous NSA employees, for instance, or even being used for voyeurism. In his October 7, 2001 New York Times magazine article, “A Watchful State,” about the use of surveillance cameras in public places in England, Jeffrey Rosen reports that bored operators in the surveillance program routinely amuse themselves by spying on amorous couples in parked cars.

I do think that Posner raises some legitimate issues about the unique problems posed by terrorism in combination with modern technology. One common argument that I don’t find persuasive is that if current rules were enough to get us through the Cold War when our adversary was an armed-to-the-teeth nuclear superpower, they’re enough to get us through the War on Terror. But there is, in fact, a unique danger in facing a stateless, amorphous opponent undeterred (unlike the Soviet Union) by the threat of retaliation, and with bases in multiple countries including right here in the U.S. Our enemy today is much more flexible than during the Cold War, and it stands to reason that our response needs to be more flexible, too.

At the same time, surely I cannot be the only person troubled by Posner’s proclamation that U.S. law is “not a Platonic abstraction but a flexible tool of social policy.” If a liberal were to make such a statement in justifying (for instance) a broader application of the Commerce Clause to promote various social causes, conservatives would howl in outrage. Of course the law is not a Platonic abstraction, but make it too flexible, and you will end up with something like an old Russian proverb translateable roughly as, “The law is like a pole: whichever way you twist it, that’s where it will go.” In America, we are supposed to live under the rule of law, not merely of social policy.

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19 Comments

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19 responses to “Richard Posner on warrantless surveillance

  1. Anonymous

    Hmm… I just did a quick read of the Posner excerpts and nowhere did I notice the CONSTITUTION of the United States even mentioned.

    I’ve gotta go to work now, but hopefully someone will backstop me on this.

    If I’m correct… if I’m reading correctly and Cathy has kept Posner’s thoughts in context (which I have no doubt she’s done)… what does that say about the state of our nation? Is the constitution now totally irrelevent to even someone like Judge Posner?

  2. Anonymous

    so we need a police state,constant surveillance for our protection?
    uhhhhhhh
    just where is the USA that so many fought for its freedom?
    this is absolute corruption by the lowest forms of despots.
    br3n

  3. Revenant

    a police state,constant surveillance [...] this is absolute corruption by the lowest forms of despots.

    … and that is why the American public has thus far responded to the surveillance scandal with a collective yawn. Too many of the people criticizing it are obviously unhinged.

  4. Joan

    I’d like to propose a moritorium on the construct: If X were to do such-and-such, X’s opponents would howl in outrage.

    Painting with such a broad brush wears thin.

    As for Posner’s comments, they make sense to me. His discussion of intelligence gathering in this instance didn’t strike me as trawling with a huge net — he spoke of monitoring identified phone numbers. That seems pretty specific to me.

    It would seem to me, too, that there should be a way to amend the law without giving away the game, and I can’t find a justification for why that hasn’t happened yet. But the bottom line remains, as Posner says, assessing the consequences of the program. The majority of Americans view this program pragmatically, and are willing to accept it in spite of any potential for abuse.

  5. Zachary

    Hi. Really off-topic, but are you a big Xena fan? You posted on my blog and that made me come over and check your stuff out. Slightly a more political slant than I was expecting, but it was refreshing to find a fellow Xena fan!

  6. William R. Barker

    Cathy writes…

    …since the principal fear most people have of eavesdropping is what the government might do with the information, maybe we can have our cake and eat it, too: Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security. So, if the government discovered, in the course of surveillance, that an American was not a terrorist but was evading income tax, it could not use the discovery to prosecute him for tax evasion or sue him for back taxes. No such rule currently exists. But such a rule (if honored) would make more sense than requiring warrants for electronic surveillance.

    ================================

    “Tax evasion,” Cath…??? (*GRIN*) Any reason you picked tax evasion rather than, say… rape or murder? Let’s say the taps uncover – quite by happenstance – that the terrorism suspect is actually a serial rapist or serial murderer or active pedaphile, or part of a sex slave operation or… you pick?

    Call me a cynic, but methinks you “might” (*GRIN*) have picked the “back taxes” reference mainly because most Americans aren’t big fans of the IRS. (*SMILE*) Come on, Cath… fess up. (*GRIN*)

    ===============================

    Cathy continued…

    Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets.

    ================================

    So… where would you place the limits of “expectation of privacy?” Any concrete examples?

    I tell ya, Cath… I’m not necessarily disagreeing with you, but the reason I say that is simple because I’m not sure I’m following your logic here.

    Could you flesh out your distinctions concerning surveillance aimed at detection rather than at gathering evidence of guilt?

    I’m not trying to be argumentative here and I’m not attempting to play “gotcha” here. I’m simply unsure if I follow your logic.

    Am I understanding you correctly that anything short of actually physically entering someone’s house or business without a warrant is fine with you? For example, it’s o.k. to “surveil” a person’s telecommunications, but not actually enter the home physically? How about those x-ray-like cameras the military has that can “see” (at least shapes – the Israelis use this technology to scan the inside of buildings for snipers) through walls? How about mics that can pick up conversations right through walls? This sort of thing would be fine with you?

    Again… please believe me… I’m not trying to bust your chops; I’m sincerely confused about what exactly you’re in favor of vs. what you’re against.

    =================================

    Cathy continued…

    …surely I cannot be the only person troubled by Posner’s proclamation that U.S. law is “not a Platonic abstraction but a flexible tool of social policy.” If a liberal were to make such a statement in justifying (for instance) a broader application of the Commerce Clause to promote various social causes, conservatives would howl in outrage.

    ================================

    There’s no need to fear… Bill the Constitutionalist is here! (*GRIN*)

    Nope… you’re not alone, Cath. I caught that line too.

    Now… if you follow your own logic here as it applies to comments I’ve made on other threads you’ll see where I was coming from! I couldn’t agree with you more! Self-described conservatives SHOULD scream like banshees when any of the branches of government seemingly go beyond the bounds of their constitutionally bestowed powers and authorities.

    (*WINK*)

    ================================

    Cathy concluded…

    Of course the law is not a Platonic abstraction, but make it too flexible, and you will end up with something like an old Russian proverb translateable roughly as, “The law is like a pole: whichever way you twist it, that’s where it will go.” In America, we are supposed to live under the rule of law, not merely of social policy.

    ================================

    EXACTLY, Cath! That’s the point I’ve been trying to get across to Rev and others on any number of threads. Glad to hear we’re on the same side!

    (*SMILE*)

    BILL

  7. John Howard

    But such a rule (if honored) would make more sense than requiring warrants for electronic surveillance.

    He’s right. The problem is not anything to do with whether there was a warrant or not, it is whether the information is abused. We need better safeguards here, not warrants from the FISA courts that do not protect us from abuse if a warrant is issued.

    bored operators in the surveillance program routinely amuse themselves by spying on amorous couples in parked cars.

    See, stuff like this should be illegal. They should be fired and go to jail for abusing their power like that. The people listening to our phone calls should not be allowed to pass on anything other than terrorist threats, whether they had a warrant or not.

    if the law is so inadquate to current needs, then why not actually change the law?

    Cathy, you are right that terrorists probably are smart enough to assume we might not follow the law (and so, probably not actually dumb enough to openly talk on outgoing calls that they ‘know’ we can’t monitor), so the only effect of changing the law would be on those silly professors that now would freak out and not talk freely anymore. Which is totally silly, because they already could have been under surveilence legally, but apparently they felt, like you, that the FISA court never would allow professors to be monitored. So leave the monitoring and FISA laws alone, and lets push for a law that protects us from abuse of surveilence information.

  8. Cathy Young

    Bill … *scratches head*… I think you’re confusing some of my comments with Posner’s. He’s the one who referred to tax evasion, not me.

  9. Revenant

    if the law is so inadquate to current needs, then why not actually change the law?

    Suppose you want to intercept all phone traffic between the USA and Muslim nations in order to scan it for terrorism-related keywords. You think you have a possible argument for why it would be legal for you to do this, but in all honesty the law isn’t clear. You have three options:

    (A): Ask Congress to change the law to make it definitely legal,
    (B): do it under the existing law and hope you get away with it, or
    (C): abandon the idea

    Of those three choices, only B and C make sense, because “A” gives advance notice to all the people you’re hoping to listen to that you’re going to be listening to them. Sure, terrorists might have figured “we’re probably being listened to” — but there’s a world of difference between thinking you might be listened to, and knowing for certain that you will be. In the former case you might risk making the call; in the latter you’ll find another way.

  10. AprilPNW

    Hmmm, the old “it is easier to ask forgiveness than permission” strategy, eh?

  11. Pooh

    Oh bullshit Rev.

    They don’t already think they’re being monitored? But please bring up OBL’s sat-phone cannard, because it hasn’t been debunked several times already.

    Make up your mind, are they fiendishly clever archvillains against whom we need every possible power at our disposal, or are they bumpkins who live in caves and have no idea that we have ELINT capabilities?

  12. William R. Barker

    Cathy wrote…

    Bill … *scratches head*… I think you’re confusing some of my comments with Posner’s. He’s the one who referred to tax evasion, not me.

    ===============================

    Ha! Ha! Ha! Sorry about that, Cath! My bad! (Loved the *scratches head* by the way!!!)

    Other than that, though… any comments or answers to the questions I raised?

    BTW… this is a general comment/question, not a slam against ANYONE… but from your vantage point reading all the posts on all the threads… can you see where someone could get the impression that few posters really care all that much about what the Constitution actually says and what the Founders’ intent was?

    You were born in the Soviet Union, right, Cath? The Soviet Constitution was basically a beautifully written but worthless document. It promised freedoms and rights but delivered neither. Just like the Soviet “justice” system, it sounded great on paper but was a sham in reality.

    Now God forbid I would ever compare the U.S. Constitution to the old Soviet Constitution or any other dictatorship’s Constitution, but it’s because of all the examples throughout history where constitutional freedoms weren’t worth the ink used to write them down that I’m so adamant about our staying faithful to our Constitution.

  13. Revenant

    They don’t already think they’re being monitored?

    Pay attention. I already said they think they’re being monitored; they just don’t know for a fact that they’re being monitored.

    Try to remember that we’re not talking about a bunch of highly trained covert operatives. We’re talking about a bunch of misfits drawn from the freaks, losers, and crazies of the Islamic world. That it is completely unbelievable to you that such people might get overconfident if they don’t know for a fact that their calls are being recorded is a sign of your limited imagination.

    Make up your mind, are they fiendishly clever archvillains against whom we need every possible power at our disposal, or are they bumpkins who live in caves and have no idea that we have ELINT capabilities?

    I have never said pr implied that Al Qaeda are “fiendishly clever archvillains”, nor have I suggested that we need every possible power at our disposal to fight them. You’d be a lot less tiresome if you bothered reading the things I actually write instead of criticizing the things you’ve only imagined I said.

  14. Pooh

    You’d be a lot less tiresome if you bothered reading the things I actually write instead of criticizing the things you’ve only imagined I said.

    That’s funny, you’ve described your own modus operendi, and the main reason why I come here much less often than I used to.

  15. Neal R.

    Cathy says: “Our enemy today is much more flexible than during the Cold War, and it stands to reason that our response needs to be more flexible, too.”

    A rhetorically powerful phrase, but logically unpersuasive. I think there’s an equivocation fallacy here. What kind of “flexibility” are you talking about the enemy possessing, and what kind of “flexibility” do you think we need to have? Are you suggesting we could fight Al Queda more effectively if we were a small stateless organization, rather than a vast superpower? Or that we, like Al Queda, should be “undeterred by the threat of retaliation”?

    I also take issue with the empirical claim that Al Queda is “much more flexible” than the Soviet Union. Again, what do you mean by flexible? Even granting your statement that Al Queda cannot be deterred by retaliation, does freedom from that constraint outweigh all the “flexibilty” advantages the Soviet Union possessed by virtue of being a vast, powerful country with global insluence, a sophiscated intelligence agency, satellites, spies all over the world, highly trained special forces, etc. etc.?

    If you mean, “Our enemy doesn’t play by the rules. It therefore stands to reason that we can’t play by the rules, either,” that doesn’t follow logically at all. It may be a true statement, but it’s not axiomatic. Please explain.

  16. mythago

    Posner has reached that lofty level in the ivory tower where he can propose, and support, ridiculous interpretations because (he believes) they won’t ever affect him. Civil liberties are merely an amusing subject for speculation.

    As I recall, Rosen’s article also noted that the video-camera monitoring rooms were plastered with photos of attractive women, taken with the surveillance cameras. Many were what we would refer to as “downblouse” pictures.

  17. Anonymous

    Can I make a suggestion for the community here? Let’s all just ignore revenant from now on. It’s not possible to reason with him.

  18. Darleen

    I’m not at all sure that intelligence works the way Posner thinks it does: i.e., that it’s a random search for a needle in the haystack rather than the pursuit of some actual leads (e.g. observed behavior that leads to suspicion).No search, even the NSA intercepts, are truly random. They operate from observable behavior ie intelligence gathered that demonstrates that Islamist terrorists are “cell” organized and make use of cheap, readily available, easily changed technology. Then they try and set up (as far as been publicly disclosed) a data-mining/automatic surveillance system based on key words, phrases, etc, on particular international traffic. Obviously Aunt Martha in Beaut, MT, discussing quilt patterns with her friend Mildred in Paris, TX is not going to trigger auto-words, let alone actual monitoring.

    under the constant gaze of surveillance cameras not only in the streets but in our homes.

    I missed that. Where is anyone supporting cameras in private homes? As far as public cameras, I’ll remind everyone that no one has a general expectation of privacy when one is in public. Maybe the officers watching parked couples is “icky” but guess what? What the couples are doing in public is illegal and a cop happening upon them would have the legal right to bust ‘em for lewd conduct. So are we annoyed because someone gets caught in public or that’s its being done with technology?

    As far as the Constitution goes, well, “provide for the Common Defense” is in there as well as Article II. Intelligence gathering on foriegn threats has always been the perview of the military and last I looked, the President is the CnC and Congress holds the purse strings.

    I durned well expect my government to be using every state of the art technology to monitor al Qaeda and its ilk, inside or outside of the US.

    Just as I expect my local police department to gather intelligence on organized crime in my neighborhood.

  19. A. Rickey

    Having lived in England, I’m amused by the “invasion of privacy” so outraging some commentors here: the idea that policemen operating surveillance cameras routinely spy upon couples having sex in parked cars. The couple involved would necessarily be in a public space, probably committing indecent exposure. In a very technical sense, this is what should happen: the police are watching a crime. Now, the last is tongue-in-cheek, but why should the policemen involved be any more ashamed of watching two people misbehave in public than I should feel guilty for walking by?

    (I lived on a sort of mini “lover’s lane” one year, and it wasn’t uncommon for me to walk past some steamy windows on the way back from a late movie. While I didn’t stare into the windows–that would have been a bit creepy–I rather felt that the rhythmic squeaking of shocks was a nuisance to me, not that my presence was a violation of their privacy.)

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