Posner forgets himself

by Kieran Healy on December 21, 2005

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?

Update: Some reaction from lawyers: Marty Lederman and Daniel Solove have more. Daniel has a bunch more stuff on NSA surveillance, too.

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{ 31 comments }

1

Shelby 12.21.05 at 1:35 pm

Sigh. Kudos to Kieran for noting one of Posner’s prior good acts before deservedly ripping him a new one.

2

Bud 12.21.05 at 1:44 pm

The theory that there exists an intellectual conservatism distinct from the practice of lying to justify atrocities gets weaker verey day.

3

Nick 12.21.05 at 1:46 pm

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.

One might also note that whoever leaked this information committed a crime and, according to Bush, has harmed national security. If Bush adheres to Posner’s position on these matters (as I imagine he does), Bush should then feel entirely justified in turning this surveillance apparatus towards finding and then punishing the leaker.

Posner wants to close off the same sieve he claims will save us.

4

Trey 12.21.05 at 2:18 pm

FYI, Posner is taking questions in a chat session at the Washington Post today. Here’s the link. It’s supposed to run 2-3, but right now it’s listed as delay.

5

rd 12.21.05 at 2:23 pm

Sorry, but aren’t the liberty interests in the two cases vastly unequal? “Grind to bits” could easily describe arbitrary deportation; I’m not sure the monitoring of some phone calls rises to the same level, unless it could be shown they led themselves to some sort of groundless arrest or deportation. Posner isn’t being inconsistent. As a proper pragmatist, he’s recognizing that various deviations from an ideal civil liberties framework will carry different costs (and benefits), and should be judged by that standard. People may disagree, but its not incoherent.

6

Kieran Healy 12.21.05 at 2:43 pm

I’m not sure the monitoring of some phone calls rises to the same level, unless it could be shown they led themselves to some sort of groundless arrest or deportation.

My claim is not that being spied on is an equivalent harm to being locked up or deported. It’s that big state bureaucracies that can lock up or deport people are going to be much more likely to do it to the wrong people if they’re also allowed to secretly spy on huge numbers of citizens, especially if they’re given carte blanche to do it.

7

Daniel 12.21.05 at 2:54 pm

Anyone who thinks that this is basically harmless is really lacking in imagination. Give me the power to “data mine” any phone lines in the USA, a big old computer to do it with and no checks and balances and it will take me less than a week to come up with half a dozen ways to cause trouble for my political opponents. Think how many inventive uses people have made of Google, for heaven’s sake.

8

Thomas 12.21.05 at 3:02 pm

“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.””

Does Posner have a problem being direct in offering his thoughts on controversial matters? Or could it be that he doesn’t actually require the re-writing that Kieran so generously provides?

9

Nathan 12.21.05 at 3:50 pm

rd –
Different deviations from an ideal civil liberties framework will indeed carry different costs and benefits, which is why we have a body of elected officials to debate and decide on the proper balance.
The problem here is not that Bush believes the laws need to be changed. It is very possible they do, and so far I haven’t seen anyone say they should not be changed. The problem is that Bush took it upon himself to ignore those laws he felt should be changed and decide unilaterally (why does that word always come up with this administration?) what that balance should be, in secret and with no public discussion. That is the exact opposite of how a democracy works.

10

robert green 12.21.05 at 4:04 pm

facile assholes like this have always been around. posner should be forced, a la clockwork orange, to watch “Brazil” on loop. “so sorry mrs. tuttle, mistakes like this do happen, of course the government does its best to avoid them. we are terribly sorry for your loss.”

that kind of thing. his naive love of machines (which may well merely be his naive love of apologizing for/toadying up to power) is just absurd. buttle/tuttle, whatever, shit happens, dude, and sometimes it happens to innocent people with names that start “al-“. sometimes those people get deported. or tortured. or killed. oh well.

make posner be the one who has to go the mom and apologize. see what kind of op-ed he writes after that.

11

rd 12.21.05 at 4:10 pm

OK, but Posner could respond that just because a less serious deviation *could* be the start of a chain of consequences that leads to far more serious ones, it doesn’t follow that they must be treated equivalently. All the more reason to insist on firmer safeguards before allowing drastic actions like deportation or arrest, while allowing more leeway on less burdensome actions.
Again, this might be wrong or misguided, but its not somehow incoherent.

12

Sebastian holsclaw 12.21.05 at 4:23 pm

First of all, I’m not particularly comfortable with the searching power of the NSA. But as far as:

My claim is not that being spied on is an equivalent harm to being locked up or deported. It’s that big state bureaucracies that can lock up or deport people are going to be much more likely to do it to the wrong people if they’re also allowed to secretly spy on huge numbers of citizens, especially if they’re given carte blanche to do it.

I’m not sure I follow your argument. Are you saying that this technique or techniques shouldn’t be used for say the drug war, or to catch common criminals? Or are you saying that it shouldn’t be used to defend against foreign terrorist attacks? It seems that the criminal defense implications and the national intelligence implications are potentially different. By analogy it might make sense to say that law enforcement officers can’t lie to suspects when setting up a sting (though that isn’t the actual rule) but it would be incredibly stupid to say that undercover spies in foreign countries can’t like while performing intelligence functions.

This may be one of the problems in treating the war against Al-Qaeda as a purely criminal matter. You are hamstrung into a wholly criminal prosecution mindset that doesn’t work effectively against Al-Qaeda.

13

Grand Moff Texan 12.21.05 at 4:32 pm

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.

Scary brown people, that seems to be the difference.

Can I forget Posner too? ‘Cause that would be cool! OK, here goes … [*].
.

14

robert green 12.21.05 at 4:32 pm

but SH, how do you support your contention that treating Al-Qaeda as a purely criminal matter…doesn’t work effectively?

i don’t get it. cite chapter and verse. show me that in the past, the US has not in fact gone after or indeed assassinated those who we believed were our mortal enemies. explain to me that we have never been able to put any terrorists behind bars using criminal codes.

you can’t do either. we have done very dark things in the name of national security for 60 years. to think otherwise is to just be deluded. do you think, up until 9/11, that the CIA gave people with whom we had serious problems roses? put them in front of prosecutors?

my father, not a particularly dangerous man, just your garden variety left-wing anti-vietnam professor, had 1000 pages of info compiled on him by various agencies for his activities! he was a patriot and a vet! not that the specifics matter so much, more to say that the government has done all sorts of dirty things in the pursuit of whatever it was they thought that were after forever. this weird assertion by many on the right that it is only lately that we have shown real steel and determination is just delusional, or possibly yet another BIG LIE.

the perpetrators of the 93 WTC bombing were successfully prosecuted. lots of people have been assasinated on our account by our government. the change in course, inasmuch as there has been one, has not shown results. worldwide terrorism is up! the state dept. says so itself. is this really that complicated to understand?

15

Grand Moff Texan 12.21.05 at 4:34 pm

This may be one of the problems in treating the war against Al-Qaeda as a purely criminal matter. You are hamstrung into a wholly criminal prosecution mindset that doesn’t work effectively against Al-Qaeda.

Uh, except it has (Spain, WTC ’93, etc.), and the military approach has only helped al Qaeda. I know that yours is a common talking point, but when it doesn’t apply to the real world (and the opposite does) it’s time to grow up and recognize that.
.

16

Grand Moff Texan 12.21.05 at 4:35 pm

posner should be forced, a la clockwork orange, to watch “Brazil” on loop.

Feh. He’d probably just consider it a good argument against switching to the metric system.
.

17

Sebastian holsclaw 12.21.05 at 4:42 pm

but SH, how do you support your contention that treating Al-Qaeda as a purely criminal matter…doesn’t work effectively?

i don’t get it. cite chapter and verse. show me that in the past, the US has not in fact gone after or indeed assassinated those who we believed were our mortal enemies. explain to me that we have never been able to put any terrorists behind bars using criminal codes.

Invading Afghanistan was not a typical part of criminal law prosecution and yet was quite vital in starting to deal with Al Qaeda.

“the perpetrators of the 93 WTC bombing were successfully prosecuted.”

Not entirely. At least one was safely in Iraq for years.

18

Luc 12.21.05 at 4:53 pm

Though computers aren’t sentient (yet, i’d say, but that’s just me), the notion that they cannot invade privacy, as stated by Posner, is not very practical.

Take the example of a camera in your home. The camera doesn’t invade your privacy. Yet having a (working and transmitting) camera in your home does, for all practical purposes, invade your privacy.

Even if no one is watching, because you can’t be sure that no one is watching.

Now I don’t expect that sort of privacy for communication that leaves my home. The number of people that could read an email that traverses some internet exchanges is large. A few thousand easily. And given current wiretap provisions, government types can add themselves to that list at will.

What I would consider a problematic invasion of privacy is some things that could be done with (continuously) tapped data. Even if done by computers, if the government collects all email I send and receive, maps all my relations, correlates it with some other databases, and creates a handy profile available to all government agencies, that would be problematic.

And you could imagine many other ways in which this data collection could lead to privacy invasions. So I would conclude that the fact that a computer is not sentient does not show that anything done by a computer doesn’t violate someone’s privacy.

Different levels of abstraction, as CS lingo would have it.

It’s just one of those arguments to add to the list to be wary of if you think privacy is important.

19

paul 12.21.05 at 5:09 pm

There’s also the not-exactly-minor matter that large bureaucracies are ultimately staffed by persons of uncertain probity. It’s true, political blackmail is probably a low-probability risk, but consider the opportunities for nonpolitical blackmail and other revenue-generating enterprises based on this kind of data. Anyone with access to this data-mining system, a good imagination and even a modicum of legal impunity could become quite rich fairly quicky, or could become somewhat less rich rather more safely by passing information on to the kinds of people who are already in the blackmail, extortion and commercial espionage businesses.

This program is what can politely be described as a high-value target.

20

KCinDC 12.21.05 at 5:37 pm

Wow, Trey, that “chat” provides a lot of insight into Posner’s mindset. For example:

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.

That seems to show an amazing faith in the perfection of computer programs. I prescribe a subscription to Risks Digest. It also shows an amazing faith in the incorruptibility of the humans running the computers.

From later in the session, Posner seems to be utterly panicked about terrorist attacks. He apparently disagrees with one questioner’s suggestion that he’s more likely to die from being hit by a car than from a terrorist attack.

21

Seth Edenbaum 12.21.05 at 5:44 pm

Clinton’s behavior only because it wasn’t important; and now he refuses to “moralize” about this because it is.

Posner’s mind is terabytes of RAM and a 5 gig hard drive

22

Seth Edenbaum 12.21.05 at 5:46 pm

oops!
Begin here: “Posner was willing to moralize about…”

23

Daniel 12.21.05 at 5:55 pm

Are you saying that this technique or techniques shouldn’t be used for say the drug war, or to catch common criminals? Or are you saying that it shouldn’t be used to defend against foreign terrorist attacks?

I think we’re saying that there ought to be checks and balances, in order to make sure that the original mission doesn’t “creep” as these things have a tendency to do. I think that there was a special court that was created for this particular purpose; if there are technical reasons why it can’t be used any more then maybe fair enough but I am not heartened to hear that the proposed replacement is “trust me”.

24

david 12.21.05 at 6:01 pm

You know, back in the day, rd’s comment #5 would have brought out at least three pragmatism nerds to say “That’s not what pragmatism is.” I miss that day.

25

snuh 12.21.05 at 7:09 pm

how it is that judge posner got a reputation as a thoughtful intellectual i shall never know. some choice excerpts from his washpost webchat:

judge george w. bush:

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.

empiricism? for chumps:

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.

judge, judge, judge, you don’t even–you’re glib:

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.

although i can’t solve this problem, i will advocate for government programs which are more likely to bring it about:

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.

abuses? oh, there will be abuses, but why should we worry?

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.

26

Tom T. 12.21.05 at 7:49 pm

Re comment 13: “Scary brown people, that seems to be the difference.”

An accusation of racism goes too far, in my view. Posner’s slapdown of the BIA, after all, protects the interests of a large number of nonwhite people.

27

Grand Moff Texan 12.21.05 at 9:36 pm

Invading Afghanistan was not a typical part of criminal law prosecution and yet was quite vital in starting to deal with Al Qaeda.

If, by “deal with,” you mean “began to promote vigorously, um: yeah.

“the perpetrators of the 93 WTC bombing were successfully prosecuted.”

Not entirely. At least one was safely in Iraq for years.

Wait, I think I know that guy. Only “Iraq” is putting is loosely.

The only reason a military response was supposed to work better than a legal response (despite no historical examples and despite the miserable failure of the military response to date) was because certain people needed to sell a conventional invasion of Iraq in order to punish a few terrorists in Afghanistan.

Now we know who was dumb enough to believe it.

Fool.
.

28

Grand Moff Texan 12.21.05 at 9:51 pm

Wait, I think I know that guy. Only “Iraq” is putting is loosely.

Whoops! Wrong red-herring. They hide behind so many it’s hard to keep track sometimes.

He’s talking about Abdul Rahman Yasin, the FBI’s “most wanted” terrorist … that they released. Yep. There’s a reason to butcher thousands in the middle of nowhere for nothing. And here I was thinking of Zarqawi, “the man Bush left alive.” He was “reason,” too.

In the trailer park, that is.

Next!
.

29

abb1 12.22.05 at 4:59 am

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.

I think what might’ve happened post-9/11 is that many of these folks like Mr. Posner – folks living in a bubble, shielded from all normal dangers of life – they got scared. See, an airplane ramming into judge’s or newspaper publisher’s or $10 million/year corporate manager’s corner office – that’s just unacceptable. No effort is too excessive to protect the best and the brightest among us. To worry about the proles losing some privacy is ridiculous.

30

Ginger Yellow 12.22.05 at 5:38 am

“No secrets concerning matters that would interest the public can be kept for long.”

Well, the British government managed to keep secret the fact that they ran a torture chamber for thousands of Nazis after WWII for fifty years. But hey, it came out in the end, so that’s OK!

31

liberal japonicus 12.22.05 at 7:58 pm

Posner’s well-founded belief that big state bureaucracies are good at grinding-up innocent people has evaporated within the last week or two.

That Posner leaned this was seemed noticeable here when he guest-blogged on Lessig’s blog (I should note that it was my comment Posner was replying to)

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