Sunday, June 9, 2013

A thought for Sunday: I'm not surprised, I watch the 'Investigation Discovery' channel

- by New Deal democrat

[Regular nerdy economic blogging will resumer tomorrow]

Revelations that the NSA is vacuuming up nearly every bit of digital information passing through US telecommunications systems have been on the front pages for the last few days, with most in Congress and the Administration reassuring us that (a) it is nothing to worry our pretty little heads over, and (b) a horrible breach of security that will help the terrorists. Unless the terrorists in question are dumb as doorknobs, this isn't telling them something they don't already know.

I confess right here, one of my guilty pleasures is watching the 'Investigative Discovery' channel, which is basically 24/7 murder detective stories. If you watch, it doesn't take long to realize that modern police work invovles, almost from the very start of an investigation (1) obtaining video surveillance from all nearby cameras, and once a suspect is identified, (2) checking video surveillance of their vehicle to determine where they were at the time of the crime, and (3) checking their cell phone records to see what tower they (or their phone) was closest to. Usually this last item is limited to calls, but in a few stories it has been suggested that simply having the cell phone "on" is enough to determine what cell tower it is pinging off of.

This all makes for great detective work, but it ought to disabuse any viewer of any idea that a record of their motor vehicle travels isn't being stored on a server somewhere (how many expressways, toll booths, and traffic lights don't have cameras there days?), and every cell phone record is also being stored by a server at least by the telecommunication company transmitting the call.

If this is pretty obvious to me simply from watching a crime detection cable channel, I'm pretty confident it is known to every non-retarded terrorist and intelligence organization in the world.

So if you start from the presumption that every act you do using electronic transmission, and all of your travels along major public highways are being monitored and stored, you're almost certainly close to the truth. The only questions that remain are (a) is it legal? and (b) how comfortable are you with it?

Constitutionally a search warrant is only required if law enforcement authorities want access to your property or your body. Aside from that they can take all the fingerprints, documents, trash, and cotton swabs of DNA they want. There are some laws designed to limit that (e.g., wiretap authorizations), but that of course depends on legislation. It is simply not a Constitutional right.

The two sources of legal authority most noted for the total sweep of non-private data are the Authorization to Use Military Force after 9/11 and the Patriot Act. The former is the more sweeping, becuase it is wrapped in Congress's affirmative Article I, Section 8 authority to authorize international hostilities (normally we think of this as just "declaring War", but if you read the provision it is clear that it encompasses an entire cornucopia of selections that may be authorized or limited, such as Writs of Reprisal (a limited hostile act short of War. Reagan's retailiation against Ghaddafi for downing a civilian jetlliner over Lockerbie, Scotland,in the 1980's is a perfect example).

The September 2001 AUMF was both very limited and exceptionally broad. It was limited because it only authorizes force "against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons". At this point 12 years later it is pretty clear that only two individuals ramain who fit under this heading: Mohammed al-Zawahiri, Bin Laden's Egytpian #2; and Mullah Omar, who headed Afghanistan's Taliban government that gave Bin Laden his base. Any 18 year old Jihadi now was a 6 year old little kid in September 2001, and as far as I am concerned, the AUMF can't reasonably re read to include him.

The problem with the AUMF is that Congress completely abandoned to the President the right to determine to whom the AUMF should apply, by the language "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks ". This is simply a complete abrogation of Congress's Constitutional authority, and it has been interpreeted by the Executive to include permanent hostilities against corporate style organizations worldwide with no exception for the domestic US.

To put it simply, there is no excuse for the September 2001 AUMF to remain in force except as a manhunt for two named individuals who were involved in that attack.

That leaves us with the Patriot Act, which is not clothed in any affirmative power to make War by Congress, and so does not (or at least should not) supercede other Constitutional protections.

Should the nearly total gathering of electronic information concern you? Imagine if the law enforcement authority gathering such information was your local police department, who ultimately answer (and maybe get appointed or promoted by) your local Mayor or Council. If you were involved in a dispute with your local government, say over zoning or development, how much faith would you have that your Mayor or Council wouldn't request from a friendly office records of your vehicle's movement about town, and your cell phone records, to find out who you've been meeting with and what plans you might be making.

If you wouldn't have total faith in your local political bosses, why should you have any more faith in state or national officials? I would say the chances of this power being used in order to spy on political opponents is, over time, roughly 100%. In fact, we already have an example in history of J. Edgar Hoover, who almost certainly did exactly that with the technology and abilities of the mid-20th Century, which made Congress and a succession of Presidents afraid to cross him. Whether you agree with them or not, there's pretty good evidence that domestic electronic surveillance was used against the "Occupy" movement. If you are not concerned by that, then how about if it is used against the NRA?

So we really don't need all the inner details of the NSA domestic spying programs. to "have the debate" Obama says he welcomes. How much of your private life (and I think your private life reasonably includes your personal phone calls and your everyday travels) are you willing to share with political officials and their law enforcement employees on a permanent basis? What kind of firewalls against abuse need to be erected? Personally, I think the requirement of specifically tailored search warrants reviewed by an impartial magistrate, and regularly made public, is the very least protection - in other words, a start. Between the 2001 AUMF and the Patriot Act, I do not believe it is presently factually accurate to refer to the US as a Republic. I would very much like to have that Republic back.