Sunday, February 05, 2006

Reform the People in Charge, Not the Laws

Bryan Cunningham and Daniel B. Prieto wrote an opinion article in the RMN today, in which they say about U.S. intelligence laws, "The current rules were developed during the Cold War, when our most dangerous enemies were foreign armies overseas."

Didn't they ever watch Red Dawn or The Day After? Seriously, our most dangerous enemies were nuclear weapons and spies/potential saboteurs on our own soil, not armies we would have to transport our own armies to face. And the rest of the article wrongly identifies the problems, as well. They blame the success of terrorists on faulty intelligence-gathering methods, rather than implementation and corruption. That's what the Administration would have us believe, as well, but it simply isn't true.

Here's an example of the "unworkable" rules they say we currently have:

For example, if a Baltimore FBI agent monitors Internet conversations between a suspected terrorist in Bali and someone on a computer with a Boston IP address, and if the chat room is hosted by an ISP in Berlin, is the intelligence being gathered insided the United States or outside, and does it involve a U.S. person?

The physical presence of the person in Boston clearly means a U.S. person is involved, which means special Constitutional limits must also be involved. And such a situation is in no way hindered by any requirement to go to a court for a warrant. Roving wiretaps follow the person being monitored, regardless of who he talks to or where. Why do they see a difficulty surrounding this situation?

And why does the hypothetical always include a "suspected terrorist." If a suspected terrorist is involved, that means that he's already been identified as a suspected terrorist, and it is reasonable to monitor his communications, therefore reasonable to get a roving wiretap warrant. Data mining for word groups is not a reasonable basis for suspecting someone to be a terrorist, especially considering that the most effective and dangerous terrorists don't use those word groups!

How about this hypothetical? An FBI agent monitors Internet conversations between someone in Bali and someone on a computer with a Boston IP address, and the chat room is hosted by an ISP in Berlin. It turns out they are American students corresponding about all kinds of political topics, including jihad, 9/11, Islam and the West, and the illegal war in Iraq. The FBI agent got this information because the NSA went fishing for particular grouped words, found these people, and passed the information on to the FBI to check out, having no other reasonable basis for thinking either person might be a terrorist. And the NSA hears so many of these types of conversations so frequently, and passes so many of them on to the FBI to follow up on that the FBI is overwhelmed and rendered ineffective, as the actual threats are lost in a sea of innocuous conversations. Meanwhile, a real terrorist plot goes forward because the real terrorists don't have lengthy discussions about their plans on the internet or cell phones.

But the authors claim they are skeptical about the Administration's actions, especially about Total Information Awareness. Hello!? What I just described is Total Information Awareness in practice now, it's just not called that.

And what is one to think when the authors think there are problems that don't exist?

Congress and the administration must get past their constitutional power struggle and reach consensus on reforming our laws to provide all necessary tools to safeguard our security, but in a way that does not compromise our civil liberties.

Congress and the Administration must never get past their Constitutional power struggles. It's called "checks and balances." Those always have to be fought for.

But they offer redundant solutions to these problems which don't exist.

Update the laws. Develop new intelligence-gathering rules that provide speed and flexibility to pursue terrorism-related leads with less reliance on location of collection or "U.S.-Person" status.

What, like roving wiretaps and ex post facto warrants? They already exist. The Administration may use them now. But the Administration is saying they may wiretap everybody and never get a warrant for anything. Why? The Administration has already said that the current laws are speedy and flexible enough to pursue terrorism-related leads, that there was no need to reform the laws. Of course, they said that while they were breaking those laws, fishing even before 9/11. So if the problem isn't the laws which exist, it must reside in those who disregard those laws. If the laws allow the Administration to effectively pursue terrorism-related leads, then the motive for disobeying those laws must be other than pursuing terrorism-related leads.

New rules must provide protections for constitutionally protected civil liberties. They also must provide clear oversight, aided by robust technical and procedural audit mechanisms, to help rebuild lost trust in our government.

Hoo, boy. Do the words FISA court and oath or affirmation mean nothing to these guys? The rules are there, the Administration is just not using them.

Ensure a role for the courts. To preserve and promote appropriate judicial oversight, new methods of court involvement must be considered. As one example, courts could pre-approve categories of electronic surveillance. This would allow the government to apply strict, pre-determined criteria to particular communications without the need for case-by-case court approvals.

No, obviously FISA court and oath or affirmation mean nothing to these guys. We need new laws that ensure a role for the courts, because the old laws, like FISA, the PATRIOT Act, and the 4th Amendment, just aren't cutting it [/sarcasm]. How do they expect the Administration to adhere to new laws when it won't adhere to the old ones?

And what use are the courts if they don't look at each case? How is that a check on Executive power when the Administration can still eavesdrop on anybody it wants knowing a court won't be looking at each case? That's what they're doing now!

We have the tools we need to fight terrorism, we have the laws. We had them before 9/11, they just weren't being effectively used. They're still not being effectively used.

And it pains me to say this, but I think that the reason we haven't seen another terrorist attack by bin Laden's group in the U.S. is that they haven't tried one yet. That's a terrifying and sickening thought, and I get terrified and sick every time someone in our Admin comes out and says they've prevented such attacks using the methods they have.

I don't believe them, not after all the lies and abuses, not when our government is wasting its time and resources spying on Quakers and student protesters, kicking Arabic-speaking gays out of the military, and torturing detainees for confessions to bolster their propaganda that they are actually achieving something.

The real problem is, what do you do with a group of powerful people who refuse to follow the law? Reform the people, not the laws. That would require an enormous groundswell of outrage leading to massive turnovers in the next election and possibly the expunging of the Executive Department in its entirety. The Speaker Pro Temp of the House [confused, but corrected] can be replaced with a Democrat this year, making the impeachments of Bush and Cheney a meaningful solution.

The system isn't corrupted, the Executive is.

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