Our Domestic Intelligence Crisis

Judge Richard Posner of the 7th Circuit Court of Appeals weighs in on the NSA spy flap:

These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

The data that make the cut are those that contain clues to possible threats to national security. The only valid ground for forbidding human inspection of such data is fear that they might be used to blackmail or otherwise intimidate the administration’s political enemies. That danger is more remote than at any previous period of U.S. history. Because of increased political partisanship, advances in communications technology and more numerous and competitive media, American government has become a sieve. No secrets concerning matters that would interest the public can be kept for long. And the public would be far more interested to learn that public officials were using private information about American citizens for base political ends than to learn that we have been rough with terrorist suspects — a matter that was quickly exposed despite efforts at concealment.

This has been my sense as well, although some people with more knowledge than I have of the state of the art of computer technology have argued otherwise.

Posner argues that the real threat is that our intelligence apparatus has still not been sufficiently transformed to fight this new enemy:

The goal of national security intelligence is to prevent a terrorist attack, not just punish the attacker after it occurs, and the information that enables the detection of an impending attack may be scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security.

While I agree that fighting crime and fighting a war is different, and even support the NSA surveillance based on what I now know, the idea of unfettered spying on innoents who “might” have useful information. Drawing that line is problematic, not only from a civil liberties standpoint but also from a practical one. Resources are scarce and wrong choices could quite literally result in people dying.

The Pentagon’s rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security. The principal domestic intelligence agency is the FBI, but it is primarily a criminal investigation agency that has been struggling, so far with limited success, to transform itself. It is having trouble keeping its eye on the ball; an FBI official is quoted as having told the Senate that environmental and animal rights militants pose the biggest terrorist threats in the United States. If only that were so.

Most other nations, such as Britain, Canada, France, Germany and Israel, many with longer histories of fighting terrorism than the United States, have a domestic intelligence agency that is separate from its national police force, its counterpart to the FBI. We do not. We also have no official with sole and comprehensive responsibility for domestic intelligence. It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.

I certainly agree that the FBI, our prime counterterrorism agency by law, is still very much bogged down in J. Edgar Hoover’s image. From what I can gather, its special agents are still the stars of the Bureau while its counterterrorism experts are viewed as lower echelon “support.” Given that it actually does have a law enforcement mission, that’s unlikely to change and, indeed, can not change given that organized crime actually is a more likely threat on a day in, day out basis.

Update: Quite a bit of reaction on Posner’s piece from around the blogosphere.

GWU sociologist Kieran Healy notes the irony that, “Earlier this month, Judge Richard Posner wrote a brutal opinion (accompanied by some entertaining oral argument) savaging the Bureau of Immigration Appeals for its capricious decision-making process, its inability to keep track of paperwork, and its willingness to dump the consequences of its ineptitude onto the people it passes judgement on—in this case by deporting them for no good reason.” He is also quite skeptical of the technical argument:

Posner is right that computers aren’t sentient and can’t really do anything by themselves. That’s actually a problem. They are technical tools put to use in organizations staffed and managed by people. Data-mining procedures (together with things like the criteria for “intelligence valueâ€) are invented by people and I see little reason to be confident that ever-more powerful, automated surveillance and data-mining tools will encourage those people to do anything other than enthusiastically apply them to the greatest extent possible.

I don’t disagree in principle but, practically, think the sheer volume of information largely mitigates against snooping for the sake of voyeurism. And, as I noted in my TCS piece, those willing to flout their authority and the law are unlikely to be constrained by legal nicities.

GWU law prof Daniel Solove is also unimpressed by Posner’s consistency or his arguments.

In other words, Posner is saying that so long as the data is gathered by computers, there’s no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: “Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.” Posner’s conclusion that records that are anonymized could still violate people’s privacy is a radical one, and I find it hard to square with what he says in the op-ed.

Solove rightly notes that simply crying “national security” is no reason to allow government agencies to run amock. But he goes a bit far with this:

If the danger is from weapons of mass destruction falling into the hands of terrorist groups, then perhaps we should devote our resources in tracking down loose nuclear weapons around the world. But establishing a massive surveillance network within the U.S. seems like a diversion from this task.

I lack to inside information necessary to evaluate the relative effectiveness of this vice alternative programs. (Indeed, if I did have it, I wouldn’t be at liberty to write about it.) But we’ve been led to believe that this program has already thwarted terrorist plots. And, certainly, electronic intelligence may well be an effective way of “tracking down loose nuclear weapons.”

Kevin Drum, who may join the Cato Institute any day, is incensed by Posner’s use of the word “entitled.”

Entitled! The federal government is entitled to read my email, phone conversations, and bank records even if I’m not suspected of anything. As long as it’s a computer doing the sifting, and as long as there’s some alleged connection to “national security,” anything goes.

I too, would stop well short of that.

FILED UNDER: Science & Technology, Terrorism, Uncategorized, , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. RA says:

    Please name 100 “innocents” that have been “hurt” by this survalence. Please name 10. Please name one! There are none. This is a hypothetical case that does not exist.

    Let the NSA look at my families library records. Anyone who is really affraid of this is either a felon or a terrorist. Sure there are many liberals who would object but they could not bring a convincing case of how they were hurt.

    The ACLU and the Democratic party is making America a much more dangerous place to live. “Civil libertarians” are hysterical pussies. I should not be put in danger because of hysterical pussies.

  2. Rick DeMent says:

    What is hysterical is the idea that you are more likely to be harmed by a terrorist in this country then you are from driving to grandmas house on Christmas.

    What is also hysterical, but in a completely different way is that fact that Republicans were all about “Civil Liberties” when Clinton proposed some of the more objectionable provisions in what is now known as the Patriot act in the wake of the OK city bombing. It was soundly defeated by House and Senate Republicans such as Bob Barr and, ironically, then Senator John Ashcroft on the grounds that it was inconsistent with the safeguards on personal liberty guaranteed in the constitution. I actually agreed with the GOP, I don’t want security at the expense of liberty and anyone who does is a fool.

  3. Jonk says:

    This whole argument over “lost” liberties has gotten old fast. The big three credit agencies have more data on me than Uncle Sam, yet I don’t see the ACLU, Dems, or anyone screaming about lost privacy there…the credit agencies can do more harm to me with their data than the NSA can on any day of the week.

    The piles of junk mail and thousands of spam emails I get a year indicate a different reality about what is “private” and what is available, trackable information out there on me, my habits, and what I like to spend on what. Lost liberty no, annoying as hell, yes.

    In my mind, all this grandstanding over what Dubya authorized the NSA to do is just more smoke and mirrors used to create an illusion of impropriety with which to fuel the ’06 election cycle. Enough is enough…stop politicizing my safety and that of the United States. That is *truly* dangerous.

  4. spencer says:

    These comments imply that this is just another example of this administration still trying to fight the WoT on the cheap. If we still have good Marines dying in Iraq because their trucks are not propertly armoured, why should we be surprised that the administration is also not willing to spend the money needed to do a good job of intelligence.

    Maybe this is just another example of why the 9/11 Commission gave the administration an “F” on its actually trying to implement its proposals to improve security.

    When are you guys going to realize that Bush is losing the WoT because his tax cuts are more important to him then funding the WoT.

    Maybe it makes you feel good to blame liberals but, liberals are not causing his incompetence.

  5. The problem is that it is not possible a priori to determine which are the communications that need to be looked at and which aren’t. In one of my former lives, I had to work on realted problems of how do we filter the unbelievable volumes of data down to what the human analysts that were available could process. This is a non-trivial problem from the standpoint not only of technology but also operations and logistics. I don’t lose any sleep about my bits floating through the machines of the NSA and others.

    Perhaps some algorithmic breakthroughs have been made, I don’t know. But I do find it disturbing that the first instinct of so many is to assume that the Bush administration is out to usurp the responsibilities of the legislature and the courts, consciously ignore or break the law, and take away our civil liberties to secure their grip on power. This is absolute poppycock if one knows anything about the processes, the people involved, and the technology available.

    The well of goodwill in our democracy has been so poisoned I wonder if we will all ever be able to drink from it again.

  6. anjin-san says:

    I guess I should be amazed at how willing many Bushites are to turn America into a police state.

    I still remember my Father telling me many years ago why it was special to be an American. “You can kill a free man, but you can’t make him into a slave. If you are a free man in you heart & mind, that can’t be taken away from you, even if you are imprisoned or killed”.

    Guess Jonk & his Ilk would prefer to be “safe” (as if there is really any such thing in this life) to continue a life of shopping at Wal-Mart to the freedom Americans have traditionally enjoyed.

  7. Herb says:

    Charles Austin:

    We do have a domestic Intelligence Crisis and there is no need fir it. We are our own worst enemies. And,

    I totally agree with your last parsgraph about the well of democracy being poisoned. I have been around for a long, long time and I have never seen the degree of hate expressed as I have seen since the 2000 elections. The Democrats started the hate campaign by inventing every possible lie that could be expanded on to make Bush look like a fool. There have been so many lies that it is difficult to remember them, but nevertheless, they were and are there. The question is, Why do the Democrats insist on spreading their hate and lies about Bush and our country? They just don’t seem to understand that the damage they cause with this tactic hurts everyone and does them no good either.

    Our latest Intelligence crisis is now in full swing and the negative charges against Bush are flying hot and heavy. Last Saturday was wild and crazy here on OTB with every “Constitional Expert” providing their expertise on Bush violating the law and the Constitution. It has now turned out that they were Wrong and the NSA spying is Legal. But, you don’t see them here today ranting and raving their Hate towards Bush. Where did they go? The answer is they are nowhere to be found, now that their faces are covered with eggs.

  8. Anderson says:

    I see where Jonathan Schell (via Rozen) has stepped back to look at the big picture:

    There is a name for a system of government that wages aggressive war, deceives its citizens, violates their rights, abuses power and breaks the law, rejects judicial and legislative checks on itself, claims power without limit, tortures prisoners and acts in secret.

    Well, when you put it like that, yes there is.

    When I was in high school, we’d get an “inspirational” speaker every year, a Marine who would warn us of the perils of drugs and Communism. He was fond of the metaphor of the frog in a gradually-heated pan of water, who would allegedly boil to death before he realized what was happening. (Always meant to try that.)

    Anyway, that was supposed to be a warning against Communist dictatorship. Joke’s on him I guess.

    Don’t we realize that Soviet citizens were led to believe that the suppression of their liberties was “necessary for national security”? Haven’t we all heard this game before?

  9. James Joyner says:

    Anderson: Don’t disagree in theory but the right to talk to foreign terrorists on the telephone in peace is pretty low on the list of civil liberties, no?

  10. legion says:

    I’m thinking RA is exactly the sort of person Benjamin Franklin had in mind for his famous quote about sacrificing libery for security…

    And Jonk, there are enormous differences in what a _private_ entity, like a credit agency, can do vs. what a _public_ entity, like our elected federal gov’t can.

    And finally, I want to draw attention to one of Posner’s more outrageous whitewashes…

    The Pentagon’s rush to fill gaps in domestic intelligence reflects the disarray in this vital yet neglected area of national security.

    “Rush to fill gaps”?!? That’s a hell of a euphemism for “decide on their own which laws to break and which to follow”. I’m pretty sure neither the SecDef, nor even the President, can viably use ‘civil disobedieance’ as a defense…

  11. Anderson says:

    JJ, the whole point is that, step by step, each time for an allegedly good reason (that usually turns out to be bogus), we get our liberties whittled away.

    OT, the 4th Circuit has burned the feds on their petition to get Padilla transferred to DOJ custody. I would not have believed that Luttig could be this harsh. Opinion here; my good-parts collection here. The op is worthy of an OTB post, IMHO.

  12. John Burgess says:

    Having lived and worked in police states, I can tell the difference between them and the US pretty readily. There is simply no comparison and only a fool would think there was any similarity.

    I did learn to live with–because there was no alternative–my phone being tapped, people I spoke with being “invited” to discuss the conversation with secret police, and having my home bugged. I also learned how to get around the inconveniences, or to ignore them when they were unavoidable. And yes, I even modified my behavior at times to avoid putting people (including myself and my family) in danger.

    Because I call and e-mail people in the Middle East, I suspect that I’m putting my communications at greater risk of being surveilled than a typical American. That’s fine with me. My communications aren’t involved with terrorism, money laundering, kiddy-porn, or the violent overthrow of the United States. The gov’t can read my mail.

    I sincerely doubt that it’s interested in what books I’ve just read, what movies I’ve just seen, whom I may or may not be sleeping with. I assume that they’re looking for something with a little more intrinsic value.

    If some jerk-off is going to be peeping into a hot little e-mail I’ve sent off to that Kuwaiti cutie, that’s his problem, not mine, other than that he’s wasting my tax dollars by not doing his job. He’s got so much stuff to look at for important information that I don’t delude myself that I’m of great interest.

    I think the complaints are coming from those with rather inflated egos who think their little lives somehow rise to the level of “I give a shit”.

    If the government, by looking at my mail along with that of millions of others, can find and deter a terrorist attack, I’ll swallow my self-esteem.

    The program currently being indicted by the left actually doesn’t give a damn about your meth lab, your pink panties, your half-terabyte of porn, unless those are somehow also involved in terrorism.

  13. Arcs says:

    I’m finding this all rather laughable.

    Has anyone stopped to wonder why the string of presidents writing executive orders to authorize these activities stops at Carter? Simply because before then, there was No Such Agency.

    I say, let them do the job they’ve been doing since they began right after WWII. Maybe they’re getting better at it.

  14. anjin-san says:

    Yep, the founding fathers would be proud of stalwart Americans like John B. who’s position is “yes, spy on me, read my mail, tap my phone, just please, oh please, don’t let Osama hurt me”.

    Yes it was upon the stalwart, unwavering, fearless shoulders of men such as he that this nation was built.

    Just kidding, I think the founding fathers said “Give me liberty or give me death”.


  15. Herb says:

    I must now assume that the “Defenders of the Constitution” are talking about Carter, Clinton and LBJ, who started the escallation of the Vietnam war with a boldfaced lie” (Gulf of Tonkin Incident) were amoung those who spyed on them taking away their libertys and changing their lives and lifestyles forever. I feel so bad for them. They have been scared forever and they now have to live their lives with the trama of being found out.

    This goes back to the old saying, “What you don’t know, won’t hurt you”. But, I guess that’s over their heads.

  16. Herb says:


    You conveniently forgot to mention the “Carterites and the The Clintonites.

    You are so full of it, your eyeballs are Brown.

    Tell everyone here when your libertys have been infringed upon that affected you directly.

    I bet you can’t do it.

  17. anjin-san says:

    Is that the prattle of the dead I hear?

  18. John Burgess says:

    Anji-san, you don’t quite get it.

    I worked, in the Middle East, for the government. I’ve had over a dozen friends killed by terrorists from Libya, Hizabollah, and Al-Qaeda. I was in Riyadh when the 2003 bombings took place–as well as when over a dozen foreigners were killed individually or in pairs. My wife and son have been caught in crossfires between insurgents and government forces and I’ve had guns put to my head more than once. I also continued to fly using my diplomatic passport when, had my plane been hijacked, I would have been murdered.

    Having actually seen and felt the effects of bad guys, coming from bad places, with bad attitudes, I can make a rational decision about what constitutes real danger. I also have perspective to tell the difference between trivial inconveniences to one’s inflated ego (as if the government could care) and real threats.

    I’m happy that warrantless intercepts have kept you safe. I’m even more glad that they’ve kept me safe. I have sometimes wondered, though, whether keeping you safe was what I put my life at risk for. Hardly seems worth it.

  19. anjin-san says:

    Damn, did not realize James Bond was posting here…

  20. Herb says:

    John Burgess:

    I can tell you that trying to get through to Anjin is a hopeless cause. He put himself up like some sort of a “Freedom Martyer” and has very little good to say about this country. He has indicated his support (Understanding) for terrorists and consistantly and constantly has negative thngs to say about about everything in this country. He sometimes trys to pass himself off as a conservative, but is about a far left wing California liberal as you can get.

    So John, just don’t waste your time with him Like I have said before, Anjin might call himself an American, but he is far from it.

  21. John Burgess says:

    Herb, I’ve so gathered from his comments.

    What I ask now is, “where’s the damn NSA?” Why aren’t they taking his raggedy ass down?

    But it is cute that he takes his name from a bag of ramen noodles…

  22. Herb says:

    John Burgess:

    Never thought of the noodle thing, but, come to think of it, he does sound like a noodle head and acts that way to.

    Personally, I have always thought he was a left wing plant on OTB. Maybe he’s noodle squash.

  23. Hal says:

    Really love the authoritarian tone your commenters have been providing, James. Kind of cool.