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17 July 2013

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William R. Cumming

ConfusedPonderer!

Perhaps a short brief on the Administrative Law State in the USA would make clear why the National Security State in the USA does not want to be part of the Administrative State and in fact fears that State to the Nth degree.

The Administrative State built in the USA since the 30's is based on the avoidance of arbitrary and capricious behavior by those who govern. You can be arbitrary and you can be capricious but not both. Why? Administrative law requires the creation of a reviewable of the administrative record with those who created the record accountable and responsible for it and that record be available for review by those vested with decision making authority. You now see why you could be arbitrary but your decision must be reviewable by the courts in particular based on what is in the record. Was the subject fully considered and was that record made complete by those compiling it and not censored or secret from review. And were those compiling the record and treated by the courts as expert [who is an expert in the administrative state would require another post and comment too lengthy for here just as would the treatment of the courts of "science" involve more]!

If the administrative record is ignored or incomplete then the administrative decision is arbitrary and should be sent back for further review not simply voided. It is that completely compiled administrative record that is the key and that is exactly why the NSS fears that record and its compilation so much.

In the middle 80's a distinguished professor of law sought my advice as to whether a National Security Law text focusing on the domestic side of the NSS should be created? I said yes. And now in its 6th or 7th edition that text is one of many and National Security Law is no longer viewed as a subset of International Law solely but it is of course that always.

My focus is and has been on what I label civil security in a democracy not necessarily what some call Homeland Security. Administrative law is clearly a basic necessity to civil security. The real question is the National Security State fed by enormous tax dollars and enjoying secret law a threat to civil security. Personally I believe it is as currently constructed.

confusedponderer

WRC,
thank you for your explanations for which I am grateful, since, to my chagrin, my knowledge of US administrative law is quite cursory. My view is that National Security Law is administrative law all the same, never mind the other label. Maybe in that a mischievous streak shows.

It is as straightforward as it is probably idealistic in the US context. It is however a rather orthodox point of view in Germany. And I also think that in its current form the US national security state, largely free of oversight and restraint, is destined to lead to excess.

When the definitions fit the criteria of administrative acts, I'd kid myself if I ignored that (after all, what quacks like a duck ...) - and from there it follows that there must not be exceptions from the procedures mandated by administrative law also, and if, then only to the extent that they are absolutely necessary.

Speaking of such exceptions - compromises in the interest of national security - FISA in that regard appears to be an utter failure, considering that in 30 years they have apparently refused less surveillance requests than I have fingers on my hands. The NSA cannot be so sainted as to have not in three decades forwarded that few unjustified surveillance requests. Ludicrous.

Now of course I see that the cult of those who pursue national security as a creed fears nothing more than transparency, judicial oversight and the shackles of administrative law - if the creed is national security über alles, then all of the three are severe security risks.

Collecting everything, to create a haystack to search for needles is just an expression of that - even when instead they could just try to find, hire and train people that are good at looking for needles where they are most innocuous, pincushions for instance, or in the hand of a seamstress. Strictly metaphorically speaking of course * ...

But that is not a tech fix, and since to a hammer every problem looks like a nail, to the NSA there apparently is no problem that cannot be solved by more intercepts and increasing algorithms, storage and computing power.

* Dear NSA: NO, I DID NOT MEAN YOU OUGHT TO LISTEN IN TO ALL SEAMSTRESS SHOPS BECAUSE THAT'S WHERE THE NEEDLES ARE!

William R. Cumming

Confusedponderer!

I should probably have mentioned the Regulatory State in the USA which is derivative of the Administrative State.

Congress in giving regulatory authority under the Commerce Clause to some department or agency through the President or otherwise essentially delegates authority. The challenges to the New Deal were over excessive delegation of regulatory authority not actual administration of federal financial assistance programs although in some cases it did include that effort.

Congress tries to have it both ways and often does, but the lobbyists always have it their way. How? If a regulatory body regulates in some way whether health and safety or financially the game is whether that specific regulation was authorized by the statutory delegation. If the lobbyists like it it was delegated. If not then it was not delegated. No person even one who tries to follow the issues closely can cover all regulatory actions, even those impacting health and safety. Thus the lobbying industry is free to "assist" Congress by providing draft legislation and reviewing draft legislation. The lobbyist also now have major staffs in all key states where significant decisions on their financial future or public health and safety may be made.

As deceased Senator Robert Byrd was wont to say "they never sleep down there" referring to the Executive Branch. Congress simply outgunned by the modern world IMO! Worse deeply corrupted and unable to do its job.

William R. Cumming

Perhaps I should disclose that I had a role very minor in drafting both FISA and the Classified Information Procedures Act both enacted about 1978!

Both were labeled reforms. FISA because a brilliant lawyer now long deceased at DoJ was the real predecessor to FISA.
MARY LAWTON! She was the key review point on surveillance issues for private communications mainly by the FBI!

The second statute was enacted because DoJ was totally frustrated in trying and hopefully gaining convictions of spies. The defense attorneys had long learned to argue that only with the full release of classified information could their clients be defended. Sometimes it was true and sometimes not.

Both statutes had and do still have inherent limitations. But when enacted they were viewed as positive reforms. Reforms in Washington sometimes play out very differently then when enacted.

The hold on Dempsey by McCain is over the authority of Dempsey to speak his mind as Chairman based on tenuous language IMO in the National Security Act of 1947.

That NSA of 1947 was also viewed as a reform. I have argued for its complete and comprehensive revision to advisors to both Clinton and Obama. Neither had the interest or the guts to take on the NSS IMO.

confusedponderer

WRC,
from my point of view the differentiation between the national security state, the regulatory state and the administrative state is quite artificial - if, and I may be mistaken, they are being regarded as separate fields of law. To me they are not since they are all just different aspects of administrative law.

Legislation that gives an administrative body guidelines and a legal mandate to enact detailed rules and regulations are quite common, and probably the most effective way to put these guidelines into practice, leaving the details to the subject matter experts. I don't see that as much as a problem, since judicial review can tackle the issues resulting from it.

If one looks at mining safety leaving the details to subject matter experts makes perfect sense, and it has been under the influence of lobbies that, at least under Bush, yes-men were posted in oversight positions - with led to mining corporations staying in operation despite a hundred safety violations and things like the Massey Mining disaster as a consequence. To abandon such forms of regulatory oversight, and denounce them as "red tape", is a folly that has gotten people killed and likely will continue to get people killed, and the only explanation for such folly is blind greed.

The institutional problem on which I fully agree with you, is the problem of formulation of guidelines under lobby influence. We have that here, too, but in the US you have at the state level groups like ALEC that have 'conservative' wish lists, eh, laws, ready made on the shelf, not to mention the big lobbying Washington that do the same on a federal level.

If one looks at it in an abstract way we have basically four separate realms of law based on who is dealing with whom - state to state (international), private to private (civil law), state to state (constitutional) and state to private (administrative and as a special subset of that, criminal) - with some overlap.

The laws on surveillance and the like all fall safely in the set of state to private relations, in which the private party is usually subordinate to the state (hand over records, you must not fly, let me search your computer, do this, don't do that [act, tolerate, comply, cease]).

The government covertly gathering data is just avoiding to have to do the former - telling the subject directly to comply with them listening to your calls and reading your meta data. But it doesn't make the very nature of the act, the law they operate under and the power relations behind it any different.

So I don't buy at all that the national security state so special that it ought to be exempt from all the safeguards and obligations that for good reason have been put into place in administrative and criminal law, given the scarcity of angels and all that.

confusedponderer

Re: "Congress simply outgunned by the modern world" - as far as surveillance goes, technology has overtaken law, and legislation has not caught up.

I wrote that the eavesdropping is the equivalent of an administration ordering you to search your computer - I didn't bring it to the end:

Technology has made it possible that they don't need to tell you this any more, because they can, instead of searching you, go to the people who store and process your data.

This what is making it difficult for affected parties to get standing in the US, as courts have routinely dismissed such cases on grounds that the eavesdropping was between, say, AT&T and the NSA, and that the data on the plaintiffs are just accidentally in the requested data. That is of course nonsense - the very point behind the NSA demanding the from the Telecoms was to get all there is.

Universal surveillance is indeed a paradigm change over the traditional search.

William R. Cumming

Confusedponderer!

In response to your point that the Administrative State, the Regulatory State, and the National Security State are all the slice of the same pie, perhaps?

But except for defense and sound administration of the federal fisc the Administrative State is not an adversary one.
The Regulatory State often viewed as an adversary process even when dealing with health and safety issues by those regulating and regulated.

But clearly the National Security State is at least nominally dealing with adversary's of the USA, military or otherwise. Protection of the Constitution not high on the NSS list of duties despite the oaths taken. What seems to have happened is that the culture of the NSS in dealing with foreign adversaries, and even some domestic, has now turned in full fervor to deep mistrust and fear of the average citizen and resident of the USA who must be tracked completely to discover what they are up to doing. Little in the way of training or sensitivity to what made the USA great in the past. Domestically of course I always watch military involvement in civil life, including disaster response, as I worry that dealing with victims and survivors of disastes, those employed by the military will view them as the "enemy" and not worthy of any other consideration but FORCE PROTECTIOM upon which the military now spends billions each year. The events at Ft. Hood may put into question military internal security procedures. As more and more civilians are allowed to carry concealed weapons perhaps some review of Base weapons possession policy might be impacted. Off duty and off base conduct often problematic.

confusedponderer

WRC,
thanks!

I can see the reasoning behind the Classified Information Procedures Act. The practice it meant to address continues still, and is iirc called greymail. That would be one of the things where a reasonable compromise between due process and legitimate security concerns can be made. Do you think it has been a success in that regard?

Also, in retrospect, would you say that FISA is a success? Does it strike a reasonable balance between privacy and security? The impression I have gotten from reading about the court is that it is generally not an obstacle to surveillance. They are either accommodating or the intelligence services are saints, or the reality is more nuanced and I just get it wrong. Or is it so that whatever FISA forbids is done out of the loop, and doesn't reach the court anyway?

MS2

FWIW Edit: the "Glibly..." sentence has "powerful" where it should have "weak". If it's going to be on a bunch of hard drives, it might as well be corrected. Anyway the less strident way of saying what I said above is that the notion of fascism as a cartoonish evil from the past is flawed and its underlying mindset is better understood as something akin to gut bacteria that had better stay confined in certain places. I think it was Toland's biography of Hitler that had a Viennese ask him "did someone crap in your head and forget to flush?"

confusedponderer

That quip really sounds like something a Viennese would say. They have that way with words.

William R. Cumming

CP! If you will allow that abbreviation. The real problem is that those very few cases that reach the Judiciary don't allow that Judiciary to develop expertise with regards to their NSS issues and policies. The FISA court was an attempt to alleviate that lack of expertise. But Judges can be lazy also.

My guess is that stories like that on leak prosecutions in today's NYTimes may well sensitize the FISC! Perhaps am wrong.
It would be difficult to see how that court could be any more friendly to the NSS as it is now.

I am hoping some academic [law professor perhaps?] will write up both FISA and/or CIPA and analyze their impacts, successes and failures.

Clywdshire

Perhaps that which threatens our constitution also undermines our intelligence:

Medical researchers have worried quite a lot about “collecting too much data” in considering the consequences of running tests with high numbers of false positives. A test that is, say, 98% effective, seems pretty good when you look at the percentage, but when applied to a large population, the costs for the whole medical system, for follow-on medical services, and costs to individuals falsely identified as having a disease are absolutely appalling. One of the costs of such errors is always that other serious medical problems that are treatable are missed. The “big data” approach to finding terrorists must be very inefficient compared to routine medical testing, and in some ways the costs of the false positives found in that process might be estimated using the medical models for various diseases. Misdirected attention and misdirected resources are a big problem when you collect too much data. Perhaps an insider could do the math, and tell us what this actually costs.

Secondly, the staff necessary to service the kind of data that is being collected by the surveillance apparatus, including contractors of various sorts, has grown huge. Big enough to be some kind of sample of the population of the country as a whole. They are probably hiring at lease one possible Ed Snowden every month (and that's a good thing, in my view), and they are surely hiring a dozen idiots every week. Even if you ignore or overlook the corruption inherent in the contracting system, the sheer size of the staff with security clearances that this system has created makes the system itself part of the business community in this country. I think of myself as living a long way from Washington, geographically, and in every other sense, and still there are people in my own (mid-western) state who identify themselves in corporate life with their history of work within and connections to this apparatus. It will soon be hard to investigate the problems of the “big data” approach to chasing terrorism, without seeming to be anti-business. My guess is that a deep penetration of the profit motive within this kind of intelligence gathering tends to exaggerate its importance and its successes. .

Perhaps computers can find correlations in large batches of data that, while invisible and incomprehensible to humans, may help predict the future actions of human beings. This dream always seems to come from a marketing department that expects that someone who has visited a website devoted to a dead starlet will buy purple socks. If someone identifies you as a terrorist on the basis of some set of correlations, you have no defense, because these are not the same as intentions, planning, or actions, that you can ask be proven. Besides endangering our constitutional rights, then, the technological apparatus that studies big data will swamp our attempts to understand the real world with trivia. I expect that some day its masses of data will be sold in the same bankruptcy sale that disperses reality television, the Federal Reserve, and bubbles in the stock market and real estate.

The Twisted Genius

Excellent points, Clwdshire. Cyber is the new GWOT among both the beltway bandits and the empire building bureaucrats that inhabit the swamps of D.C. Eventually they will feel obliged to showcase some kind of success to justify further investment. Just like the FBI fabricates terror plots from easily manipulated sad sacks, the big data people will create terror plots using some form of six degrees of Kevin Bacon software.

William R. Cumming

In a very close vote [217-205] the US House of Representatives refused to adopt restrictions on surveillance by NSA of American citizens and residents. Yesterday late on the 24th of July.

William R. Cumming

Reading a book and found an interesting reference to a WSJ editorial pre-Murdoch for which I have no link:

"More Domestic Spying-Now we learn that NSA sought records of every phone call in the Country. What else don't we know?" 2006 Editorial Wall Street Journal 12 May, A20.

William R. Cumming

Late this PM [August 9th] the WH used the late summer Friday PM ploy for release of a White Paper on why collection of all private phone conversations is Constitutional and authorized by statute. The WP relies on the fact that the contents of all private phone calls [N.B. not the fact they were made] as being business records of the providers. Hey, who knew?

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