Topic: Law and Civil Liberties

Talking at You is Different from Talking with You

Department of Homeland Security Under Secretary for Intelligence and Analysis Charlie Allen has a longish post on the DHS “Leadership Journal” blog today entitled “Why the Country Needs the National Applications Office.” The NAO has come under a lot of fire for the threats to privacy and civil liberties that come from its national satellite remote sensing capability.

I haven’t spent a lot of time studying the NAO, so I’m not well positioned to discuss all of its issues, but this post probably doesn’t clear the air much. It helps illustrate why the credibility of communications like this is relatively low.

The need for the NAO, as Allen puts it, is established by the agreement by a couple of government agencies that they should do it.

In 2005, the Office of the Director of National Intelligence and the U.S. Geological Survey, which chairs the CAC [Civil Applications Committee], chartered a blue-ribbon commission to review how the CAC facilitated, managed and oversaw capabilities and resources of the Intelligence Community for appropriate domestic applications. The commission concluded that there is “an urgent need for action because opportunities to better protect the nation are being missed.”

People in government got together and agreed that people in government should be doing more. Surprise, surprise.

Does the NAO have support?

I am not sure what some commentators meant when they said the NAO lacks for champions. All they needed to do was ask a homeowner whose home was saved by the kind of overhead imagery NAO will be able to provide firefighters. Or they could have spoken to me, who has served this country as an intelligence officer for 50 years, or to my bosses, Department of Homeland Security Secretary Michael Chertoff and Director of National Intelligence Michael McConnell. The homeowner or any one of us in government service would have been happy to explain how the NAO will benefit the American people.

This is classic, and ham-handed, appeal to authority. “We all agree that we should do this, so we should do this. And homeowners would agree with us because we plan to save their homes from fires.” Fires are in the headlines this week, y’know.

Where the post really falls down is its defense against charges that the NAO threatens privacy and civil liberties.

The Department of Homeland Security, with the assistance of a number of partner agencies, has designed the NAO with an extraordinary amount of scrutiny and oversight to ensure that the civil liberties, civil rights and privacy of Americans are protected. A National Applications Executive Council will oversee the NAO. It will be chaired by the Deputy Secretary of DHS, the Deputy Secretary of Interior, and the Principal Deputy Director of National Intelligence, and aided by their policy, legal, privacy, and civil liberties and civil rights advisers.

Both the Privacy and Civil Rights and Civil Liberties offices of DHS thoroughly reviewed the NAO Charter and other plans, and completed privacy and civil liberties impact assessments. In addition, DHS’ Inspector General reviewed the NAO’s privacy stewardship and issued a very favorable report.

To rephrase: “The government has agreed that it will safeguard your privacy. We’ve got a lot of panels and boards to do it. So you’ll have your privacy.” The DHS Privacy Committee, on which I serve, is one such panel, and nobody asked us … All the government stamps of approval can go on a government program and that doesn’t show that it will protect privacy.

There is a big difference between telling someone something and showing someone something. Officials like Allen can announce from every rooftop that the NAO will protect privacy, but people won’t believe it unless they can get a look at its operations, understand all that it does, and see what will prevent its work from slipping into privacy-violating domestic surveillance. This is when the secrecy trump card gets played, of course.

This post is Charlie Allen talking at the public, not talking with the public.

I’ve experienced this before. When he spoke before the DHS Privacy Committee, it was pretty much a fillibuster. He spoke for nearly the entire time his schedule allowed and took only two questions before whisking himself away to go be important somewhere else. We were talked at, not with. I gained no assurance that Allen has privacy in hand, much less in mind, as he goes about his work.

Al-Marri Ruling

Yesterday, a federal appellate court finally issued its ruling in the Al-Marri case. This ruling highlights the most important constitutional issues that have arisen since 9-11, namely, the power of the executive vis-a-vis Americans here at home. True, Al-Marri is a citizen of Qatar, but Bush’s lawyers have been clear that what they’ve done to Al-Marri (incommunicado imprisonment in a military brig) can be done to any American suspected of terrorism. As a practical matter, it means Americans can be arrested without warrants and jailed without trials. The Padilla case was never really resolved by the courts, the momentous legal issues involved were left hanging out there once he was transferred into a civilian court to face criminal charges. To clear up the uncertainty, let’s hope the Supreme Court will hear this matter next term.

I’m still studying the 200+ pages in the ruling, but that’s my quick take. For additional info, go here and here (pdf).

After Heller

Well, what now?

Following a victory that some thought impossible, the advocates of the right to bear arms are asking themselves where to go next. None are more qualified to answer that question than Robert A. Levy, co-counsel in District of Columbia v. Heller, the landmark case that has permanently changed the shape of gun rights jurisprudence. In his lead essay at Cato Unbound, Levy discusses several important questions that the Supreme Court did not decide: Does the Second Amendment apply to the states as well, under the doctrine of incorporation? Which regulations are and are not permissible? What’s next in the political realm?

He also has a particularly cogent discussion of judicial activism, a concept conservatives and liberals alike tend to misunderstand:

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Deference in the face of excesses by the political branches, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule prior cases, leaving entrenched the very foundations of the regulatory and redistributive states they rail against. In practice, judicial restraint has mutated into judicial passivism, with a predictable result: more government power and fewer constitutionally protected individual rights.

Neither “judicial activism” nor “judicial restraint” is an end in itself. Liberty is.

Federal Prosecutors

Today, Cato is publishing an article about some disturbing trends that have emerged in federal criminal law. Washington, D.C. attorney Richard Janis explains that business executives saw what happened to Arthur Andersen when that firm tried to defend itself by going to trial. To avoid the potential catastrophe of a full-blown trial and a criminal conviction, firms will now do almost anything to placate federal prosecutors and avoid an indictment, including waiving the attorney-client privilege and firing employees at the direction of the government — even if the firm concludes that such employees were just following directions and are otherwise innocent of any wrongdoing.

Janis observes that federal prosecutors have so much leverage over business firms these days that the very nature of our adversary system of justice is in jeopardy. Companies must too often cough up millions of dollars for “settlements” that are wildly out of proportion to any perceived wrongdoing.

Janis’s paper is short but potent. To check it out, go here.

Legislating in the Dark

Andrew Sullivan says he can “live with” the FISA legislation:

But it seems to me the focus of blame should be on the president and should be exercised primarily through political rather than legal means. And the trouble with prosecution is that it does become difficult to determine when exactly we stop forgiving illegal actions designed for the public safety in the immediate wake of a catastrophe like 9/11. I do forgive it in the wake, and see some lee-way for executive energy in moments of crisis or unknowing probably for a while thereafter (even though it horrifies me that the Bush administration would have merrily assigned all these powers to itself indefinitely if it could, and not even told anyone, let alone come promptly to the Congress asking for a reformed FISA law). But how do you prosecute a company on the basis of that kind of blurry line - granting immunity before but not after a point we deem appropriate or defensible?

My concerns are appeased now that the Congress has signed on in the light of day, that a court is there as a safeguard, retroactively if necessary, and that FISA is re-established as the exclusive mechanism for government wiretapping.

What puzzles me about this is that I don’t know what he means by “in the light of day.” We still don’t know who was spied on. We don’t know if it started before the September 11 attacks — one former telecom exec claims it began 7 months before the attacks — or if it was initiated months after the emergency had passed. And we don’t know the extent of the program: if it targeted just a handful of suspected terrorists or if, as the Klein declaration suggests, the phone companies gave the NSA unfettered access to all international traffic it carried. Given that Congress didn’t know these things, it makes no sense to say that it legislated “in the light of day.” Congress chose to debate in the dark, with no real knowledge of what they were granting immunity for, nor what they were approving going forward.

Even worse, the legislation appears to be specifically designed to foreclose avenues that could be used to uncover what has been done. The telecom immunity provisions have gotten a lot of attention, and they’re obviously one vehicle that could have shed some light on things. Another, less noticed, provision prohibits state utility commissions from investigating telco participation in these programs, a provision specifically designed to shut down several pending investigations by state utility commissions. And of course, the reduced judicial oversight, along with the provisions allowing the government to bypass the courts and issue “directives” directly to telecom companies, ensures that judges won’t know all that much about these programs either.

It would be one thing if Congress had conducted a thorough investigation, determined exactly what the telcos had done, and then reached the conclusion that the program, while technically illegal, was a reasonable and forgivable response to an emergency situation. It’s quite another thing to grant immunity without knowing what the immunity is for, and then give the administration and the telecom companies the green light to continue doing it without meaningful judicial oversight. That’s not signing on “in the light of day.” It’s signing a blank check.

I should mention the one provision that may yet bring some details to light: the legislation does mandate that the inspectors general of the various government agencies involved in intelligence-gathering prepare a report on the “Terrorist Surveillance Program” and submit it to Congress. That’s a worthwhile exercise, and similar reports have produced important information about lawbreaking in the past. However, it’s not clear how much detail these reports will contain, nor is it clear what Congress will do if the administration stonewalls. More to the point, Congress should have waited for the results before deciding whether to grant immunity. That’s what the Bingaman Amendment would have done: put the lawsuits on hold but delayed granting immunity until after the inspectors general had delivered their report. If the Senate had been serious about legislating “in the light,” they would have approved that amendment, but it was voted down along with the others.

Hostages Returned to a Less-Free U.S.A.

Couldn’t help noting that Keith Stansell, one of the U.S. hostages recently rescued from Colombia, had this to say:

To the government and armed forces of Colombia, their heroic actions, those of those soldiers that day, brought me home safe, and for this I thank them.

To my country who never forgot me, never, and especially to the U.S. embassy in Bogota, my heartfelt thanks.

And to you, the men and women of the media, thank you for respecting our privacy in these last few days. Thank you. I ask you please to continue to do so, please, as we proceed with our transition process back to a normal life as a family. Thank you very much.

And to Governor Crist of the great state of Florida, sir, I don’t have a driver’s license. How am I going to get home?

Without a government-issued ID to show at the airport, it appears that Stansell will have to undergo a deep background check, which may include his political party. (Having been “off the grid” the last three years, he may not have much background to check.) The Department of Homeland Security welcomes you home, Mr. Stansell.

The Power to Consult about War?

“In no part of the Constitution is more wisdom to be found,” James Madison wrote in 1793, “than in that clause which asks the president to give Congress a courtesy call whenever he’s picked a new country to invade.”  Well, no, that’s not actually what he said.  It went more like this:

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man.

How to check that temptation?  In 1973, Congress tried the War Powers Resolution, a deeply flawed piece of legislation that has never so much as inconvenienced a president bent on war.  Former Secretaries of State Jim Baker and Warren Christopher – and a bipartisan panel of DC bigwigs – have a new answer: semi-mandatory consultation with Congress backed up by a dread “resolution of disapproval” (that the president can veto!).  Somehow I don’t think this is going to work.   

I haven’t had a chance to read the full report yet, but judging from the coverage and the op-ed Baker and Christopher penned for yesterday’s Times, the Commission’s proposal seems like an exercise in High Broderism.  For some serious attempts at putting teeth in the War Powers Resolution, check here and here

However, as I explain in the Cult of the Presidency, I’m skeptical that any of these megastatute solutions are going to work.  Because no Congress can truly bind a future Congress and no statute can force the courts to resolve separation of powers fights they’d rather duck, such legislative solutions tend to be about as effective as a dieter’s note on the refrigerator.  Unless and until ordinary voters demand that Congress stand and be counted on issues of war and peace–and defund unauthorized wars–we’ll continue as before.  Hey, maybe we are the change we’ve been waiting on.