What to expect
So this is my roughest week of the quarter, what with exams and papers due, so I don't have a ton new to report tonight. But there are three things on the agenda.
1. I adapted an earlier post about Wal-Mart for a column in the Maroon last week and in Tuesday's newspaper there is a response column written by one of UChicago's latest Rhodes Scholars. Expect a response from me (hint: I am going to talk about predatory pricing).
2. Tomorrow Richard Posner and Geoffrey Stone are going to be debating the NSA's wiretapping. I plan on attending it and doing my first live blogging. We'll see how it goes.
3. Last, tomorrow is also the State of the Union, so expect some links on analysis on that. I'd probably give some analysis of my own if I didn't have so much crap to do.
-Mr. Alec
posted by Alec Brandon @ 1:59 AM
1 comments
1 Comments:
TNR on Posner. http://www.tnr.com/blog/theplank
THREE QUESTIONS FOR RICHARD POSNER:
I'm glad to see we're debating Judge Posner's intriguing article about the NSA wiretapping program over on the TNR homepage. For my money, though, Posner's argument rests almost entirely on the following passage:
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, FISA doesn'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.
If Posner is right that the only way to establish probable cause in the case of a call by a terrorist suspect from a foreign country to a U.S. phone number is to go outside the FISA framework, then he may have a point. But this argument raises several questions: First, would demonstrating that a terrorist suspect has called a U.S.-based number and that a subsequent computer search reveals a suspicious pattern of calls (both permissible, warrantless activities) not be sufficient to establish probable cause before a FISA court, which would then grant a warrant to scrutinize a particularly suspicious conversation involving that number? Second, even if this technically wouldn't amount to probable cause, would most FISA court judges not grant the warrant anyway? (Everything we know about the FISA courts suggests that their interpretation of "probable cause" is pretty liberal.) And, third, even if the answer to both of the first two questions is no, would it not be possible to amend the FISA statute so that all you needed in order to secure a warrant in this case were the two elements Posner posits--a call from a terrorist suspect abroad to a U.S. number and a suspicious pattern of calls associated with that number?
Only if the answer to all three of these questions is no--and it may be--would Posner be correct in suggesting that the Bush NSA program is necessary. So my question to any lawyers and/or FISA experts out there is precisely that: What's the answer to these questions? (Apologies if these questions were raised in the extensive comments about this piece. I read through many, but not all, of the comments and didn't see this issue come up.)
--Noam Scheiber
P.S. Posner makes a similar version of this argument in today's debate, but I think it raises the same set of questions: Even if you technically couldn't establish probable cause in the hypotheticals he poses, might a FISA court not grant you a warrant anyway? And, even if the answer is no, couldn't we amend FISA so that it would? After all, in every hypothetical Posner lays out, the government would presumably have some basis for wanting to spy on somebody, however weak. Why not just adjust the standard to accommodate that--make it, say, "nontriviality"? (If the basis is trivial, arbitrary, or otherwise has no bearing on whether the person is likely to be a terrorist, I think we'd all agree that we don't want the government spying.) The point remains that it'd be better to have a weak standard and judicial oversight than no standard and no oversight.
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