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. “We are not required to permit [the unlucky victim] Benslimane to be ground to bits in the bureaucratic mill against the will of Congress,” he said.
Today, Posner has an Op-Ed in the Washington Post arguing that the Defence Department and the FBI need extensive new powers to spy on as many U.S. citizens as possible. It seems that Posner’s well-founded belief that big state bureaucracies are good at grinding-up innocent people has evaporated within the last week or two.
We’ve learned that the Defense Department is deeply involved in domestic intelligence … conducting, outside the framework of the Foreign Intelligence Surveillance Act, electronic surveillance of U.S. citizens within the United States. … Although the CIFA’s formal mission is to prevent attacks on military installations in the United States, the scale of its activities suggests a broader concern with domestic security. Other Pentagon agencies have gotten into the domestic intelligence act, such as the Information Dominance Center, which developed the Able Danger data-mining program. … 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. … It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives.
By the by, this clearly acknowledges that Posner believes the President has been breaking the law. I especially like the phrase “outside the framework of the Foreign Intelligence Surveillance Act.” For “makes it difficult,” read “makes it illegal.” For “ad hoc” read “secret and illegal.”
Anyway, Posner takes this mission-creep from foreign to domestic spying not as an example of the way bureaucratic snoops will tend to want to put everyone under surveillance because they can, but as evidence that there are “gaps in our defenses against terrorism.” And so:
… 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.
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 value”) 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. Posner, though, is unaccountably confident that they will be deterred by the prospect of news coverage:
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.
How long, exactly? The fact that the President had authorized extra-judicial domestic spying on American citizens was kept secret for several years by our sieve-like government. After learning about the story, our numerous and competitive media kept it secret at the request of President for a further year (and through an election cycle). I am at a loss to see why Posner believes a combination of leaks and media stories is such an effective incentive against the abuse of power that we really don’t need any laws to specifically prohibit state agencies or the executive branch from doing this kind of thing. Does Posner believe that the stories that have trickled out about the CIA mistakenly capturing, interrogating and dumping foreign citizens have done anything much to induce restraint in those organizations?
Besides, it’s simply untrue that political blackmail is the “only valid ground” for regulating the use of such data. The Benslimane case, for example, wasn’t about the state using its power to blackmail an opponent. It was about some random man getting—as Posner himself eloquently put it—“ground to bits in the bureaucratic mill against the will of Congress.” Gigantic government agencies like this screw up all the time. If vast amounts of domestic surveillance data are to be collected and processed by the state, innocent people are going to be ground to bits in much the same way. These will be small and ordinary lives—people with lives not worth politically blackmailing and frankly not worth a spot on the local news, either. But it will be their lives that get wrecked all the same.
Astonishingly, Posner then cites evidence of bureaucratic sluggishness and poor goal-specification in support of his argument that government agencies should be allowed to trawl the country for data with a “much wider, finer-meshed net.” The FBI, he says,
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.
Why does Posner think that “a domestic intelligence agency that is separate from its national police force … [headed by an] official with sole and comprehensive responsibility for domestic intelligence” and provided with advanced technology to spy on its own citizens would be any less prone to the same kind of flaws, mistakes, and potential for abuse over any kind of reasonable time frame? Why does he think that the miracle of computers would make the social-organizational difficulties of managing information magically disappear? And why, in the end, is a Judge who three weeks ago was able to diagnose and rectify the casual vindictiveness of a government bureaucracy now happy to recommend the mass surveillance of innocent people by the state?