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Opinion: 'Our Domestic Intelligence Crisis '

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Richard Posner
U.S. Appeals Court Judge, 7th Circuit
Wednesday, December 21, 2005; 2:00 PM

Richard Posner , a judge on the U.S. Court of Appeals for the 7th Circuit, was online Wednesday, Dec. 21, at 2 p.m. ET to discuss his op-ed, 'Our Domestic Intelligence Crisis' , ( Post, Dec. 21, 2005 ), and his contention that U.S. domestic intelligence operations are not a threat to civil liberties, but rather are filling in dangerous gaps in the country's defense against terrorism.

The Transcript Follows.

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washingtonpost.com: This chat has been delayed. Thank you for your patience.

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Washington, D.C.: What significance if any do you attribute to Judge James Robertson's decision to resign from the FISA court?

Richard Posner: I don't know the circumstances.

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Silver Spring, Md.: I read your op-ed today with interest and I appreciate your thoughtful input on this subject. However, there are a few issues that I have to take with some of your points. First, is it not the case that if current law does not adequately address the threats we face, then the appropriate action is to change the law rather than circumvent it? Wasn't this specifically the point of the Patriot Act?

More importantly, your discussion of the computer vs. human inspection of data is disingenuous. The criterion by which the computers sift the data is determined by humans, and we do not have distinct statutes for automated wholesale invasions of privacy as opposed to human, retail invasions of privacy, to my knowledge.

Next, you make the claim that "the only valid ground for forbidding human inspection of such data is fear that they might be used to ... intimidate the administration's political enemies." The constitution does not, I believe, address the motives associated with "unreasonable search and seizure". It simply prohibits them, so your argument has no bearing.

I could go on, but I will leave it there, and assume that you will let us know more if you feel that it will be necessary to find out if some us "innocent, unwitting" people have "valuable counterterrorist information".

Richard Posner: I did not offer a legal opinion. My concern was with issues of policy. Are you worried about having a conversation of yours (say this conversation) recorded in a government database? Suppose that unbeknownst to you your neighbor is a terrorist, and you happen to mention his name in the conversation. A government computer picks up the name and learning from your conversation where he lives, arrests him.

Would such an episode bother you? If so, why?

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Chicago, Ill.: I am curious as to where Judge Posner gets support for his position that the NSA's software systems first search for data that has intelligence value before there is actually any human intervention in the process. This assertion seems to be without any factual basis, especially since there has been hardly any debate or oversight of these systems.

Richard Posner: I have no inside information about the operation of NSA. However, according to an article in one of this morning's newspapers, NSA intercepts 650 million conversations a day. Obviously its staff cannot personally review this volume of conversations. They must be using computer search engines to pick out the tiny fraction of potential intelligence interest.

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Washington, D.C.: Judge Posner:

You say "The Foreign Intelligence Surveillance Act makes it difficult to donduct surveillance of U.S. citizens . . . unless they are suspected of being involved in terrorist or other hostile activities." But the administration has said it is spying for precislely that reason, they believe, hopefully with evidence to support that belief, that these folks are suspected terrorists. Thus under your standard, the administration has the necessary prerequisite to obtain a warrant under FISA. Why then are they not breaking the law?

Richard Posner: The real problem with FISA, as an anti-terrorist weapon, is not, I think, the bother of having to get a warrant, especially since the warrant can be obtained retroactively; it is that the statute places too great restrictions on surveillance of U.S. persons (citizens plus permanent residents). And, as you say, that problem falls away if the government confines its non-FISA surveillance to terrorist suspects. There is still a question, though, whether FISA is the sole basis for national security surveillance of U.S. persons. Suppose the United States was being invaded by a foreign power; no one would think that to intercept the communications of the invading force would require a FISA warrant; invasions are outside FISA's domain. The Administration position is that the joint resolution of Congress authorizing the use of force against al Qaeda is in effect a declaration of war, and that the activities that the non-FISA surveillance is aimed at thwarting is in effect an attempted invasion of the United States. If that is a sound position, it would justify the non-FISA surveillance that the National Security Agency has conducted, at least as that surveillance has been described by Administration officials.

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Fairfax County, Va.: Computer-generated intel is undeniably useful, but just as clearly susceptible to abuse. Wouldn't you prefer that some checks be placed on the executive's use of this power, for the same reasons that the Framers devised a system of separated powers?

Richard Posner: Congress is entitled to conduct oversight of all executive branch activities, including national security intelligence. That oversight, if conducted competently, is an important check on abuses.

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Lansing, Mich.: You offered up this hypothetical: "Suppose that unbeknownst to you your neighbor is a terrorist, and you happen to mention his name in the conversation. A government computer picks up the name and learning from your conversation where he lives, arrests him." But this is beside the point; the hypothetical that concerns most reasonable persons is when your neighbor talks about you or you talk about yourself. Could you please address those situations, much as the Fourth Amendment does?

Richard Posner: I thought I did answer the question, but maybe I wasn't clear. If the neighbor is talking about you, and you are not a terrorist, what he is saying is not of interest to the intelligence services and will not be flagged by the search engines for human scrutiny. But suppose his phone number is on a list of terrorists' phone numbers; then the conversation will be scrutinized in an effort to find out the terrorist's address, or other pertinent information. Does this level of scrutiny worry you? It doesn't worry me.

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Boston, Mass.: In the situation you described earlier in the chat why can't the President simply ask the people,through Congress, if it would bother them? If he believes this is an effective an appropriate law enforcement tool why can't he just say so. Let we the people decide if we want to give away any right to privacy we might assume we have in our communications?

What if you are having a political discussion with your non terrorist neighbor and mention bin Laden and for the proceeding months all your phone calls are monitored by law enforcment? Would that bother you?

Richard Posner: I think it would be highly desirable to explain to the public the tradeoffs between security and privacy. Effective counterterrorism does entail some reduction in privacy. I don't think most people would mind the government's scrutinizing their conversations for information of potential intelligence value if they trusted the government not to misuse the information.

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Annandale, Va.: Judge Posner:

Though I am not the original writer, to answer your hypothetical about the neighbor and my conversation, yes, it would bother me.

It greatly bothers me that my communication is searched without authority, no matter who it captures. If the government is on the lookout for someone, they can choose to broadcast that (like the FBI lists at my local post office), and I, as a citizen, can choose whether or not to cooperate in the government's investigation.

In your hypothesis, everyone becomes an agent of the government, whether they approve or not. I am not as learned as you, but from my public school education, it was instilled in me the notion that the government is an agent of the people, not the other way around. If we choose not to help the government in its investigations, we may do so.

Richard Posner: If it would bother you, that is certainly a reason not to permit the kind of data mining that I described. But it is not a conclusive reason--even for you. You have to consider what might be lost by forbidding that kind of data mining. What might be lost might be an opportunity to prevent a repetition of the 9/11 attacks, or indeed something far worse. What weight would you give to such a possibility?

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Arlington, Va.: Your conclusion that scrutiny of a neighbor's phone call shouldn't worry most people illustrates the problem with the 4th amendment today.

This creates a downward spiral with regards to what a reasonable expectation of privacy is. People that are less concerned with privacy provide the government more opportunity to conduct warrantless searches. Is it truly a good thing that you are not concerned? Wouldn't it be better if we were all more concerned about our privacy?

Richard Posner: Why are you more concerned with your privacy than with your safety? Maybe you don't think the nation is at serious risk of further terrorist attacks. I disagree.

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Mclean, Va.: How would you propose the oversight structure of a modern day domestic intelligence agency? Would they be able to spy without a court order? How would you make surew they are reigned in?

Again, why has the streamline process between the FBI and the CIA failed?

Richard Posner: The FBI and CIA have overlapping responsibilities, a formula for turf warfare; they also have very different institutional cultures, which exacerbates the tensions between them. The FBI is basically a criminal investigation agency, oriented toward arrest and prosecution; the CIA is an intelligence agency with little interest in the use of the criminal process against terrorists. My own view is that we would do better if we had a domestic intelligence agency separate from the FBI; it would work better with the CIA because both would be intelligence agencies.

I favor data mining, in the sense of comprehensive collection and sifting of information from all sources, including electronic interceptions, to provide a body of data that would be searched by computer for the tiny nuggets of information having real intelligence value; those nuggets alone would be inspected by intelligence officers.

Of course there are risks of abuse. I doubt that judicial control is the most effective antidote. I would emphasize instead internal review within the intelligence services and congressional oversight. And realistically there will be control in the form of pervasive leaks and resulting media publicity. As I said in my op-ed, our government is a sieve.

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Washington, D.C.: You ask "Why are you more concerned with your privacy than with your safety?"

The 4th Amendment provides a guarantee of privacy (at least against unreasonable governement searches). Nothing in the Constitution does (or could) provide a guarantee of safety.

I suspect that I am statistically much more at risk of being run over by a car than of being killed by a terrorist (even though I live within five miles of the White House). Should the government ban all automobiles to protect me?

Richard Posner: If your premise were correct, your conclusion would follow. But how do you know you're at less risk of being killed by a terrorist than being run down by a car? The risk in the sense of probability of being killed by a nuclear bomb attack on Washington, a dirty-bomb attack, an attack using bioengineered smallpox virus, a sarin attack on the Washington Metro (do you ever take the metro?), etc., etc., cannot be quantified. That doesn't mean it's small. For all we know, it's great.

Better safe than sorry.

But I want to ask you and the other questioners: what precisely is the privacy value that you fear would be impaired by data mining?

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Charlottesville, Va.: Your comment to the question from Arlington deals in absolutes, much like Bush and his administration does, by saying "Either you're for your safety or for your privacy." You seem to lack the capacity, like this administration, to admit that a balance between to two is possible, and in fact most desirable. Why do you see this in terms of absolutes?

Richard Posner: I don't. I agree entirely that safety and privacy must be balanced. The question is where to strike the balance. Many of these questions reflect what I believe is an insufficient appreciation of the danger of terrorism. With every day that passes since 9/11, many Americans feel safer. I think they're mistaken. Every day may be bringing us closer to the next attack, which may be far worse.

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Gaithersburg, Md.: Fear-mongering. That's what I'm reading in this.

You asked "Why are you more concerned with your privacy than with your safety?"

Looking at the headlines and the stories concerning identity theft, I'd say that protecting my privacy IS the protection of my safety. What's to say that information garnered by the government in this manner will be so well protected that it won't end up in the hands of people looking to use it in other ways?

We have to strike a healthy balance between our privacy and protection, and from what I'm gathering, you'd prefer the government collect every bit of data it can to protect against any and all conceivable threats.

Richard Posner: There is fear mongering on both sides. Only the fears differ. Your fear of government's facilitating identity theft could be thought mongering.

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Vienna, Va.: Judge, thank you for your thoughtful comments. In you article you state. "The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive."

If this act is too restrictive, isn't the appropriate step to amend the act?

Richard Posner: I would recommend that it be amended.

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Anonymous: You said "Maybe you don't think the nation is at serious risk of further terrorist attacks. I disagree."

Well, how bout our government, instead of encroaching on American's civil liberties try to find out why these "terrorists" want to attack us and work to change their view of us. By this government attacking our own civil liberties, that probably strenghtens their views against U.S. government

Richard Posner: Nothing we could do would mollify Osama bin Laden.

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Hartford, Conn.: Would you subscribe to the position that if at opposite ends of a scale were security and privacy, it is the government's responsibility to tip the scales to security (albeit not too much) when we have knowledge of terroist intent to kill innocent people? Thanks.

Richard Posner: Yes, that is my position.

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Washington, D.C.: Isn't this debate between privacy and safety another way to debate the meaning of "reasonable" searches under the Fourth Amendment? If we accept that the world has become less safe because of terrorism doesn't that mean that what is reasonable has tilted away from privacy in the absence of some social factor indicating an increased expectation of privacy in society?

Richard Posner: Yes, precisely.

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Syracuse, N.Y.: Aren't we talking about international communications? I thought that they still need a warrant if it is a phone call within the U.S. So if someone is talking to a neighbor they don't have to be worried about the conversation being monitored.

Richard Posner: The Administration describes its non-FISA electronic surveillance program as limited to calls between a person in the United States and a person abroad. FISA itself is not limited to international calls; it permits interception of domestic calls, provided that the Act's other criteria are satisfied. A domestic phone call between two employees of a foreign embassy could thus be intercepted.

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Sunnyvale, Calif.: You say there is no civil liberties threat because of pervasive government leaks. But the President has threatened prosecution for those who leak and those who publish leaks. Secrecy would neatly sidestep the non-statute use of surveillance and allow widespread use outside the needs of national security.

Richard Posner: You've raised a good point. On the one hand, secrecy is important in intelligence and counterterrorism work. On the other hand, secrecy obstructs congressional and media oversight. I don't know a good solution to this problem.

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Falls Church, Va.: "Better safe than sorry?" Is that a precept for Americans to follow? How about the Founding Fathers? How about those young men and women who volunteered for the armed services in the wake of 9/11?

Richard Posner: Better safe than sorry means better invading Afghanistan to disrupt al Qaeda than waiting for a further attack on the United States.

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Harrisburg, Pa.: But what if in the same conversation that you mention your neighbor the terrorist, you also mention that you recently robbed a local bank. Should the federal government be able to use that evidence against you, or is the government limited in how it can use the information it gathers through data mining?

Richard Posner: If police lawfully enter a person's house say to serve a warrant, and while there see in plain view evidence of a completely unrelated crime, they can seize the evidence and use it against the person in a prosecution for that crime. So the analogy in the electronic surveillance area would be that if some conversation is lawfully intercepted for national security purposes but contains evidence of an unrelated crime, the evidence could be used to prosecute for that crime. But I would not object to limiting the use of the evidence to national security offenses; that would reduce the danger of abuse.

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Chicago, Ill.: Your premise is that increased data mining might have prevented an attack such as 9/11. But isn't it a fact that our government DID have several pieces of important data about terrorists who were in the US, and failed to do anything useful with that information? What reason is there to think that giving more information to the government will make us safer?

Richard Posner: I think the government would do at least a little better today, at least against Islamist terrorism, because it is hyperalert to the terrorist danger, as it was not before 9/11.

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Columbus, Ohio: Judge Posner:

Your cavalier attitude towards pervasive government monitoring of private telephone calls, e-mails, conversations, bank records, etc. is deeply troubling to me. How far is it from such invasive behavior to a police state where every word uttered (or, given the technology, thought had) by a citizen forwarded to some autonomous government computer for review? Would you support cameras and microphones in each of our homes (monitored only by computers of course) to ensure we are not "dangerous"? If not, why not?

Richard Posner: I think the distance is pretty great between data mining and Nineteen Eighty-Four style two-way tv monitoring. You want to separate the mere collection and sorting of email, phone calls, etc. from human inspection followed by abusive use. Only the abuses should worry you.

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Springfield, Va.: It's quite disturbing to me that an Appeals Court judge is not more aware of the dangers of eroding civil liberties that are currently underway in this country. Yes, we are all aware that there is a danger of future terrorist attacks in this country, but that is not a reason to eliminate our freedoms (and the foundation of what makes the United States what it is). Thurgood Marshall said "History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."

Richard Posner: But civil liberties are not a constant. They are far greater than they were in the 1950s. If we are in greater danger now than then, why is it improper to consider a slight rollback in civil liberties protections?

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Boston, Mass.: The issue is the fundamental trust of the government once you give them unchecked powers. The idea that data mining will start off harmless, then the key words will become civil rights organizations, anti war organizations, and anyone that doens't agree with what the administration is doing at the time. Then using this information to discredit such organizations or individuals. Its happened before and our sieve like government didn't stop it then. We only know about it now decades after the face thanks to things like the Freedom of Information Act, something this administration opposes regularly.

Richard Posner: Yes, it happened before--and we survived.

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Memphis, Tenn.: I'd like to know why Judge Posner thinks it is appropriate for a sitting federal judge to publicly express an opinion supporting the interpretation of a federal law which tries to justify violating one or more of its black letter provisions, especially when this, at best, highly questionable interpretation may come before the federal judiciary of which he is a part?

Richard Posner: I haven't expressed an opinion.

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Washington, D.C.: Judge Posner -

You stated that "machine collection and processing of data cannot, as such, invade privacy." Ever since Westin's early definition of the term, serious thinkers (of which there are few) have regarded privacy as a subjective condition. Your assertion of objective fact is inconsistent with this - and probably wrong as an expression of consensus. What definition of "privacy" did you use to come to this conclusion? How do you claim to know what does or doesn't invade privacy?

Jim Harper

Director of Information Policy Studies

The Cato Institute

Richard Posner: Would you be upset if you knew that personal data about yourself had been stored in a computer, and seen by no one, and later the computer had been destroyed, so that no human eye could or did see any of those data? If your answer is "yes," then I don't understand what you mean by "privacy" or why you care.

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Washington, D.C.: Judge Posner, you ask rhetorically whether anyone should be "worried about having a conversation of yours (say this conversation) recorded in a government database?" Although I have great respect for you, I do think that you live a sheltered and untypical life. Many people who live perfectly legal lives which are, perhaps,less well-ordered and conventional than your own, and who say things on the phone all the time that they would not want in a government data base- things that could be used to shame, humiliate, even blackmail them (into testifying a certain way about an acquaintance, for example). I certainly don't have such unqualified trust in federal spies and prosecutors that I want my every word in their databases. Do you?

Richard Posner: You're quite right to be concerned. I see the issue as one of balancing. Data mining will result in some abuses; and not data mining may result in some terrorist attacks. Because there are imponderables on both sides of the balance, one's judgment is going to be heavily influenced by temperament, personal experiences, ideology, and so forth.

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Milano, Italy: Judge Posner, you write "being rough on suspect terrorists". I believe that would have been the choice of words by an SA man in 1934 for describing torture. What makes your choice different ?

Richard Posner: Democracies and dictatorships do many of the same things. It's the differences that count.

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Richard Posner: These were great questions. Unfortunately, it's been more than an hour, and I have to leave this chat room. I am very sorry not to have time to answer the rest of the questions. We disagree a lot, but I respect the thoughtfulness of your views.

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