Tag: intelligence

State Secrets, Courts, and NSA’s Illegal Wiretapping

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.

Wednesday Links

  • John McCain channels Dick Cheney: On March 4, McCain introduced a bill that  “would require that anyone anywhere in the world, including American citizens, suspected of involvement in terrorism – including ‘material support’ (otherwise undefined) – can be imprisoned by the military on the authority of the president as commander in chief.”
  • President Obama declared passage of a major student-aid reform law yesterday. Will it help? Cato education expert Neal McCluskey calls it a mixed bag.
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Playing Chicken Again

As I wrote in this post, Senators McCain and Lieberman proposed a broad piece of anti-terrorism legislation. The Enemy Belligerent, Interrogation, Detention, and Prosecution Act of 2010 would use military detention to incapacitate suspected domestic terrorists, including American citizens. This is a sea change in counterterrorism policy and a break from American principles that mandate a day in court.

This bill is a bad idea for several reasons. First, for the points that I made in my previous post, the civilian criminal justice system successfully incapacitates domestic terrorists. Our laws are built to do that – it’s the international nature of al Qaeda and the necessity of military force in the expeditionary conflicts we are fighting that make things different. Second, I doubt that this policy will be seen as a bonanza for domestic counterterrorism, and the agencies responsible tasked with using military detention won’t actually have much use for it. Third, and most importantly, detaining American citizens minus a suspension of habeas is unconstitutional and will be held so in court.

The policy prescribed under this bill is to direct anyone apprehended and suspected of terrorism into military custody for their initial interrogation. The bill bars them from being read Miranda rights, directs a high-value detainee interrogation group to determine whether or not they fit the bill as an unprivileged enemy belligerent (Military Commissions Act 2009 language for unlawful enemy combatant), and further directs authorities to submit this information to Congress. Anyone designated as an enemy belligerent can be detained until the cessation of hostilities, which amounts to whenever Congress says that the war on terrorism is over.

The kicker is that aliens detained domestically under this system must be tried by a military commission. Citizens cannot be tried by military commissions, and the jurisdictional language in the Military Commissions Act (MCA) reflects this. Basically, the government would collect a bunch of intelligence that is inadmissible in federal courts and then hold American citizens indefinitely. Also, detaining large numbers of Muslim aliens (who may have strong ties to local Muslim communities) and prosecuting them in military commissions threatens to radicalize citizens who are Muslims. The perceived double standard – commissions for Muslims in America, civilian trials for everyone else – is counterproductive when it comes to defeating terrorist recruiting.

I say that this won’t be a bonanza for the intelligence community because I see this scenario playing out in three ways:

First, it might work as seamlessly as the bill’s sponsors describe. This could be true if we already have a lot of evidence, the suspect is arrested, temporarily transferred for a short session of non-admissible interrogation, and then kicked back to the civilian criminal justice system (true with citizens, not with aliens). There’s an argument that traditional police interrogations could get the same (or more) information that the military can, because military interrogators do not have the bargaining tools such as snitching on co-conspirators for reduced sentences, plea bargains and the like. I won’t belabor that, since it’s not the point of this post.

Second, there’s the possibility that the military and the intelligence community won’t want to get involved in a lot of these cases, essentially nullification of what Congress would dictate with this bill. The FBI would monitor the communications of someone like JihadJane, have mountains of evidence against her, and have a case that supports the arrest of her co-conspirators overseas. In this case military detention is unwarranted, so the military investigator shows up, decides that the law enforcement agents have the situation in hand, and high-fives them on the way out the door. The bulk of terrorism suspects don’t have a wealth of information about other plots, so mandating military detention is tying the Executive’s hands by making counterterrorism agents jump through additional bureaucratic hoops when they take people into custody. I thought this was something that conservatives oppose.

Mandating military custody gets hairier in real emergencies. Imagine a parallel to the 1993 WTC bombing where the FBI knows that a cell is assembling a bomb but doesn’t sweep up the suspects before the bomb is operational and in a truck bound for its intended target. Agents lose track of the suspects, but quickly locate one of them and take him into custody. The new law would mandate that they first get the guy into military custody before asking him where the bomb is going. Besides creating an incentive to put military investigators (CID, NCIS, or OSI) on every Joint Terrorism Task Force in America (possible Posse Comitatus and 10 U.S.C. 375 issues with this and the rest of the bill), this doesn’t even guarantee that a military investigator is with the agents who capture the suspect that we need information from right now. Under the current “soft-on-terrorism law enforcement approach” the law enforcement agents can question the suspect directly and be assured that the exigency of the situation makes his statements admissible in court via Quarles, where the Court created a “public safety” exception for the post-arrest, pre-Miranda questioning of a rapist who had hidden his gun in a supermarket. A bomb heading toward the federal building or a shopping mall is a bigger threat than a revolver mixed in with the fresh fruit, and courts get this. If the course of action dictated to the people on the ground fails the “ticking bomb” scenario, it ought to be opposed by all armchair counterterrorism experts who take their cues from 24.

The third possibility is a worst-case scenario. Suppose we have an American citizen who gets taken into military custody, gives up a lot of information, but then won’t repeat it when he is kicked back to the civilian law enforcement system. Some will make the case that this is justification for an honest-to-goodness preventive detention system to keep such a person in custody.

This raises the question of constitutionality with regard to holding American citizens as domestic enemy combatants. More to the point, it resurrects the case of Yaser Hamdi with a differently-situated plaintiff. Hamdi was a dual US-Saudi citizen who was captured on the battlefield in Afghanistan. He was brought to the US and kept in a naval brig in Charleston, South Carolina. The Supreme Court heard his case and the plurality held that he could be detained as an enemy combatant, but that some form of administrative hearing was required to balance his liberty interest versus the government’s national security concerns.

Justices Scalia and Stevens dissented and got this case right (agreeing with Cato’s brief). American citizens cannot be held without trial short of suspending habeas corpus, and Congress has not supplied language to comply with the Non-Detention Act when it passed the Authorization for the Use of Military Force after 9/11.

After all, President Bush’s military order of November 13, 2001 directs the Secretary of Defense to detain and try enemy aliens by military commission. The Military Commissions Acts of 2006 and 2009 have not deviated from this language.

The court challenge that results is a return to the Executive playing “chicken” with the courts, and the Executive continuously losing.

Courts will distinguish domestic terrorism suspects from those who participated in hostilities on the battlefield. This was the reasoning behind Jose Padilla’s loss in the 4th Circuit. He had been on the battlefield and escaped, parallel to Yaser Hamdi and the Nazi saboteurs of the Quirin case. This distinguished him from Lambdin Milligan, the post-Civil War domestic terrorist who was ordered out of a military commission and back into the civilian courts.

Even those who disagree with Scalia and Stevens can count votes on the Court. The narrow circumstances in Hamdi are not present here, and the battlefield/civil society distinction has the potential to sway all but two or three of the justices. Kennedy indicated displeasure with the jurisdictional shell game the Bush administration played with Jose Padilla, along with Roberts and Stevens. Souter, Ginsburg, and Breyer voted to hear his case even after he had been transferred from enemy combatant status to federal court.

The bottom line is that this bill mandates treating all terrorist attacks as acts of war and not criminal violations, when some are clearly both. It isn’t bad policy because there is no justification for military force – there is – it’s bad policy because it prohibits a pragmatic legal response to terrorism. If the law enforcement paradigm gets results for the threat, use it. The same goes for the military paradigm. But let’s not pick one over the other for the sake of domestic politics.

Every Time I Say “Terrorism,” the Patriot Act Gets More Awesome

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.

Wars, Crimes, and Underpants Bombers

I’ve been meaning to follow up on Gene Healy’s post from last week on the interrogation and prosecution of terror suspects.  I share Gene’s bemusement at the howls emanating from Republicans who have abruptly decided that George Bush’s longstanding policy of dealing with terrorism cases through the criminal justice system is unacceptable with a Democrat in the White House.  But I also think it’s worth stressing that the arguments being offered – both in the specific case of Umar Farouk Abdulmutallab and more generally – aren’t very persuasive even if we suppose that they’re not politically motivated.

Two caveats.  First, folks on both sides would do well to take initial reports about the degree of cooperation terror suspects are providing with a grain of salt. For reasons too obvious to bother rehearsing, investigators won’t always want to broadcast accurately or in detail the precise degree of cooperation a suspect is providing.   Second, as Gene noted, given that it seems unlikely we’ll need to use Abdulmutallab’s statements against him at trial, the question of whether the civilian or military system is to be preferred can be separated from the argument about the wisdom of Mirandizing him. That said, the facts we have just don’t seem to provide a great deal of support for the conclusion that, warning or no, criminal investigators are somehow incapable of effectively questioning terrorists.

Certainly if you ask veteran FBI interrogators, they don’t seem to share this concern that they won’t be able to extract intelligence their military counterparts would obtain. You might put that assessment down to institutional pride, but it’s consistent with the evidence, as the FBI has had impressive successes on this front already. And if you don’t want to take their word for it, you can always ask Judge Michael Mukasey who, before becoming attorney general under George W. Bush, ruled that military detainees were entitled to “lawyer up” – as critics of the Bush/Obama approach are wont to put it – explicitly concluding that “the interference with interrogation would be minimal or nonexistent.”

Nor, contra the popular narrative, does it appear to have interfered in the Abdulmutallab case.  Republicans leapt to construe sketchy early reports as implying that the failed bomber had been talking to investigators, then clammed up upon being read his Miranda rights and provided with counsel. But that turns out to have gotten the order of events wrong. In reality, Abdulmutallab was initially talkative – perhaps the shock of having set off an incendiary device in his pants overrode his training – but then ceased cooperating before being Mirandizied. Rather, it was the urging of his family members that appears to have been crucial in securing his full cooperation – family members whose assistance would doubtless have been far more difficult to secure without assurances that he would be treated humanely and fairly within the criminal justice system. It’s possible, one supposes, that the emo terrorist might have broken still more rapidly in military custody, but it seems odd to criticize the judgment of the intelligence professionals directly involved with the case, given that their approach has manifestly worked, on the basis of mere speculation about the superior effectiveness of an alternative approach.

Stepping back from this specific case, there seem to be strong reasons to favor recourse to the criminal systems in the absence of some extraordinarily compelling justification for departing from that rule in particular cases. Perhaps most obviously, few terror suspects are quite so self-evidently guilty as Abdulmutallab, and so framing the question of their treatment as one of the due process rights afforded “terrorists” begs the question. The mantra of those who prefer defaulting to military trial is that “we are at war” – but this is an analytically unhelpful observation.  We’re engaged in a series of loosely connected conflicts, some of which look pretty much like conventional wars, some of which don’t. This blanket observation tells us nothing about which set of tools is likely to be most effective in a particular case or class of cases – any more than it answers the question of which battlefield tactics will best achieve a strategic goal.

For the most part, the insistent invocation of the fact that “we’re at war” seems to be a kind of shibboleth deployed by people who want to signal that they are Very, Very Serious about national security without engaging in serious thought about national security. If it came without costs, I would be loath to begrudge them this little self-esteem boosting ritual. But conflict with terrorists is, by definition, a symbolic conflict, because terrorism is first and foremost a symbolic act. As Fawaz Gerges documents in his important book The Far Enemy, jihadis had traditionally been primarily concerned with the fight to impose their rigid vision in the Muslim world, and to depose rulers perceived as corrupt or too secular.  The controversial – and even among radical Islamists,quite unpopular – decision to strike “the Far Enemy” in the United States was not motivated by some blind bloodlust, or a desire to kill Americans as an end in itself. Rather, Osama bin Laden and Ayman al-Zawahiri hoped that a titanic conflict between Islam and the West could revive flagging jihadi movement, galvanize the ummah, and (crucially) enhance the prestige of Al Qaeda, perceived within jihadi circles as a fairly marginal organization.

This has largely backfired. But it’s important to always bear in mind that attacks on the United States, especially by sensational methods like airplane bombings, are for terror groups essentially PR stunts whose value is ultimately instrumental. They don’t do it for the sheer love of blowing up planes; they do it as a means of establishing their own domestic credibility vis a vis more locally-focused Islamist groups (violent and peaceful) with whom they are competing for recruits. While our response to these attempts will often necessarily have some military component, there is no reason to bolster their outreach efforts by making a big public show of treating Al Qaeda in the Arabian Peninsula as tantamount to a belligerent foreign state.  Better, when it’s compatible with our intelligence gathering and security goals, to treat Abdulmutallab and his cohorts as just one more band of thugs.

The Red Team’s Spin on The Christmas Bomber

In recent weeks, conservatives have worked themselves into a self-righteous lather over how the Obama administration handled the would-be Christmas bomber.  It’s a complaint you could hear again and again at last weekend’s Conservative Political Action Conference: Mirandizing the 23-year-old Nigerian Muslim was a big mistake, the story goes, because it denied us valuable intelligence, and it’s just so typical of Barack Obama’s callow, weak, law-enforcement-oriented approach to the terrorist threat.

As a constitutional matter, I’ve never been entirely comfortable with the Miranda decision, which smacks of judicial lawmaking, and I don’t think liberty stands or falls on whether one failed terrorist got read his rights.  In fact, I think Mirandizing Abdulmutallab was a pretty silly thing to do.  The administration could and should have continued to question him and gather intelligence (and it’s not as if you’d need his statements to convict when there were scads of witnesses aboard the plane).

Nonetheless, I still find it hard to see all the hubbub as much more than manufactured partisan outrage.

After all, Richard Reid, the failed shoebomber of December 2001, was Mirandized repeatedly by George W. Bush’s FBI, who, rather than questioning him for 50 minutes, read Reid his rights as soon as the Massachusetts staties handed him over. That was barely two months after the largest terror attack in American history, at a time when we had good reason to fear that the terrorist threat was far greater than it now appears to be.  Somehow, though, I don’t recall hearing quite as much wailing and gnashing of teeth from the Right back then. Moreover, outside of the special pleading of former Bush officials, there’s little evidence that Bush would have handled the situation much differently even if it happened much later in his tenure as president.

We’re told that the Christmas Bomber’s treatment reveals Obama’s pusillanimous new paradigm for the War on Terror. But  virtually anyone who’s taken a serious look at Obama’s terrorism policies has concluded they differ from Bush’s mainly in terms of rhetoric, not substance. You can love the Bush approach or hate it, but if you’re drawing a sharp distinction between his policies and Obama’s, you’re misinformed at best.

Jack Goldsmith, the former head of the Bush administration’s Office of Legal Counsel, notes that the

premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.

For instance, Goldsmith notes, the Obama team “has embraced the Bush view that, as a legal matter, the United States is in a state of war with al Qaeda and its affiliates, and that the president’s commander-in-chief powers are triggered.” Moreover, Obama’s Justice Department “filed a legal brief arguing that the president can detain indefinitely, without charge or trial, members of al Qaeda, the Taliban, ‘associated forces,’” et al.

The abortive plan to try Khalid Sheik Mohammed near Ground Zero has to count as Obama’s dumbest political move since he tried to strongarm the Olympic Committee.  But it hardly constitutes a repudiation of the Bush approach to terrorism. When the Bush Team was confident of winning, they tried terrorists in civilian courts – including Zacarias Moussaoui, the would-be 20th hijacker (tried and convicted in Alexandria, so horrifyingly close to the Pentagon!). And since the Obama Team continues to use military tribunals, and reserves the right to imprison KSM indefinitely in the unlikely event he’s acquitted, it’s pretty hard to see their plan for selected civilian trials as a departure from Bush-Cheney – much less an attempt to curry favor with the ACLU.

James Carafano, the Heritage Foundation’s homeland security guru, isn’t the sort of guy who carries water for Barack Obama, but he recently told the New York Times

“I don’t think it’s even fair to call [Obama’s policies] Bush Lite. It’s Bush. It’s really, really hard to find a difference that’s meaningful and not atmospheric.”

Atmospherics seem to matter a great deal to GOP partisans these days, though. Asked what specific policies Obama could adopt to reassure supposedly terrified Americans, Peter King, the ranking Republican on the House Homeland Security Committee (formerly R-Derry), could do no better than: “I think one main thing would be to — just himself to use the word terrorism more often.”

The essence of King’s complaint seems to be that, policies aside, Obama isn’t stoking fear enough, isn’t talking tough enough, and seems reluctant to act the part of “the strong father who protects the home from invaders.” Forgive me if I’m unmoved.  Thus far the discussion serves to remind one of the fact that, though Republicans talk a good game about reducing the size of government, when the rubber meets the road, they repair to reliable political gambits that allow them to duck the hard choices: flag-burning amendments, the Pledge of Allegiance, Terry Schiavo, and the like.

If you’re sincerely concerned about the best way to handle terrorist suspects in the United States, then trying to score cheap political points isn’t the best way to start the conversation.

Big Teacher Is Watching

Researching government invasions of privacy all day, I come across my fair share of incredibly creepy stories, but this one may just take the cake.  A lawsuit alleges that the Lower Merion School District in suburban Pennsylvania used laptops issued to each student to spy on the kids at home by remotely and surreptitiously activating the webcam built into the bezel of each one. The horrified parents of one student apparently learned about this capability when their son was called in to the assistant principal’s office and accused of “inappropriate behavior while at home.” The evidence? A still photograph taken by the laptop camera in the student’s home.

I’ll admit, at first I was somewhat skeptical—if only because this kind of spying is in such flagrant violation of so many statutes that I thought surely one of the dozens of people involved in setting it up would have piped up and said: “You know, we could all go to jail for this.” But then one of the commenters over at Boing Boing reminded me that I’d seen something like this before, in a clip from Frontline documentary about the use of technology in one Bronx school.  Scroll ahead to 4:37 and you’ll see a school administrator explain how he can monitor what the kids are up to on their laptops in class. When he sees students using the built-in Photo Booth software to check their hair instead of paying attention, he remotely triggers it to snap a picture, then laughs as the kids realize they’re under observation and scurry back to approved activities.

I’ll admit, when I first saw that documentary—it aired this past summer—that scene didn’t especially jump out at me. The kids were, after all, in class, where we expect them to be under the teacher’s watchful eye most of the time anyway. The now obvious question, of course, is: What prevents someone from activating precisely the same monitoring software when the kids take the laptops home, provided they’re still connected to the Internet?  Still more chilling: What use is being made of these capabilities by administrators who know better than to disclose their extracurricular surveillance to the students?  Are we confident that none of these schools employ anyone who might succumb to the temptation to check in on teenagers getting out of the shower in the morning? How would we ever know?

I dwell on this because it’s a powerful illustration of a more general point that can’t be made often enough about surveillance: Architecture is everything. The monitoring software on these laptops was installed with an arguably legitimate educational purpose, but once the architecture of surveillance is in place, abuse becomes practically inevitable.  Imagine that, instead of being allowed to install a bug in someone’s home after obtaining a warrant, the government placed bugs in all homes—promising to activate them only pursuant to a judicial order.  Even if we assume the promise were always kept and the system were unhackable—both wildly implausible suppositions—the amount of surveillance would surely spike, because the ease of resorting to it would be much greater even if the formal legal prerequisites remained the same. And, of course, the existence of the mics would have a psychological effect of making surveillance seem like a default.

You can see this effect in law enforcement demands for data retention laws, which would require Internet Service Providers to keep at least customer transactional logs for a period of years. In face-to-face interactions, of course, our default assumption is that no record at all exists of the great majority of our conversations. Law enforcement accepts this as a fact of nature. But with digital communication, the default is that just about every activity creates a record of some sort, and so police come to see it as outrageous that a potentially useful piece of evidence might be deleted.

Unfortunately, we tend to discuss surveillance in myopically narrow terms.  Should the government be able to listen in on the phone conversations of known terrorists? To pose the question is to answer it. What kind of technological architecture is required to reliably sweep up all the communications an intelligence agency might want—for perfectly legitimate reasons—and what kind of institutional incentives and inertia does that architecture create? A far more complicated question—and one likely to seem too abstract to bother about for legislators focused on the threat of the week.