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"Not a Suicide Pact": A Stone-Posner Conversation

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In commemoration of Judge Richard Posner's newest book, Not a Suicide Pact: The Constitution in a Time of National Emergency, Judge Posner and I participated in the following four-part exchange on the American Constitution Society blog. I present it here for those who might be interested:

I. Stone Seeks Common Ground

Over the past year, Dick, we have had many opporunities, both public and private, to debate the nation's response to the war on terrorism. In simple terms, I consider myself a "civil libertarian," whereas you describe yourself as a "pragmatist." Not surprisingly, we disagree on many issues. I usually argue that restrictions of civil liberties should be a last resort, considered only after we are satisfied that the government has taken all other reasonable steps to keep us safe. You usually argue that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security "outweigh" the cost to society of limiting the rights. Despite our disagreements, we have increasingly found common ground. I think it will be useful to explore our similarities, rather than our differences, to see if we can agree on some recommendations.

To that end, I suggest we focus on the NSA's surveillance of international phone calls and emails. In my view, the President instituted this program in clear violation of the 1978 Foreign Intelligence Act and in probable violation of the Fourth Amendment. You concede in Not a Suicide Pact that the the process by which the President instituted this program might well have violated FISA, but you insist that at least some version of the program would be good policy and can be upheld as "reasonable" under the Fourth Amendment.

At least in principle, I am open to your view. Constitutional rights are not absolute. In almost all instances either the text or the judicial interpretation takes into account the necessity for limitation. Whether the question is whether the restriction is "reasonable" or "necessary to serve a compelling government interest," we often "balance" the degree of limitation of the right against the strength and nature of the competing government interests. Thus, if the stakes are sufficiently high, even rights we ordinarily protect can legitimately be limited, and certainly this is so in times of real crises, as the Constiution itself recognizes in the Suspension Clause (governing habeas corpus). Civil libertarians who argue otherwise may be taking a wise and defensible position from the standpoint of advocacy, but they are not quite accurately depicting the real nature of constitutional law.

You have persuaded me, Dick, that post-9/11 we face a challenge that is unique in American history. Certainly, it is one we must confront realistically. For the first time ever, a small group of stateless individuals has the willingness and the capacity (either now or in the near future) to use chemical, biological, or nuclear weapons to kill not thousands, but tens or even hundreds of thousands of Americans. Although the magnitude of the danger they pose in the foreseeable future pales in comparison to the danger posed by the Soviet Union during the Cold War, a key difference is that the Soviets (and we) were readily deterrable. Although this was uncertain for a time, once both sides developed massive arsenals that could not be destroyed in a "first strike," the policy of Mutually Assured Destruction (MAD) ensured that neither side would attack the other. In the existing situation, however, given the nature and beliefs of the "enemy," we have no ability to deter an attack. Prevention, therefore, is essential.

There are, of course, many ways to pursue prevention. But because we must constantly search for the proverbial "needle in a haystack," advance information and identification of potential terrorists is critical. That inevitably leads to surveillance. The single best way to protect ourselves against such attacks is to identify the terrorists and disrupt their plans before they can act. This is presumably the goal of the President's NSA surveillance program, which authorizes the NSA to monitor international phone calls and emals whenever the NSA has reason to believe that one of the participants is associated in some way with a terrorist group.

Even putting aside the issue of whether this program violates FISA, the progam is clearly problematic to a civil libertarian because it enables the government to monitor the communications of American citizens without either a warrant or probable cause to believe that a specific crime may be afoot. Such a program is worrisome for many reasons. It invades the privacy of potentially vast numbers of individuals who have done no wrong, it risks government misuse of the information obtained, it may chill the openness of a wide-range of communication, it places the government in the position of "Big Brother" and thus undermines the sense of individual independence and autonomy that is essential in a self-governing society, and it gives the executive branch the power to implement such surveillance without judicial supervision.

What I am most interested in, Dick, is exploring whether you and I can reach agreement on some policy that would both give the government the authority to engage in some variation of this sort of surveillance and at the same time satisfy my civil libertarian concerns. What do you think?

II. Posner Responds to Stone Responding to Posner

There are broad areas of agreement between my good friend Geoffrey Stone and myself, but I will skip those and focus on our remaining areas of disagreement, following the order of his discussion.

With respect, I do not think that "restrictions of liberties should be a last resort." I prefer to see all proposed counterterrorist measures arrayed, and compared one with the other without a thumb on the scale. For example, if it were proposed to increase the number of FBI special agents tenfold and order them to follow on foot but at a discreet distance every Muslim in the United States suspected of terrorist sympathies, there would be no restriction of civil liberties, because there is no constitutional or statutory or common law right to be free from that mode of surveillance, whereas there are legal limitations on electronic surveillance. It would be odd to argue that the foot surveillance enjoyed a lexical priority to electronic surveillance in considering which proposed counterterrorist measures to adopt.

Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration. Maybe David Hume went too far (though I don't think so) when he said that "The safety of the people is the supreme law. All other particular laws are subordinate to it, and dependent on it." But I am not prepared to die at the hands of terrorists in order to defend the Miranda rule, or Brady, or Burton, or Mapp, or Doyle, or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

I also disagree that comprehensive electronic surveillance, including surveillance of purely domestic phone calls and emails, poses a threat to civil liberties sufficient to outweigh the potential benefits. Those potential benefits are enormous. If we conduct comprehensive electronic surveillance, either terrorists will unwittingly reveal to the monitors information that enables the terrorists' plots to be detected and foiled, or they will cease using electronic communications and resort to couriers to communicate among plotters who are not in the same city. (A third possibility is that the terrorists will foil efforts at interception by use of encryption or other electronic wizardry. If so, I assume and would hope that we would not waste money trying to intercept the uninterceptible.) History suggests that terrorists would reduce but not abandon their use of electronic communications (for in every war since the Civil War, our enemies have realized that we might intercepting their communications, yet have continued using vulnerable communications media anyway). Yet even if the only effect were to cause the terrorists to abandon electronic communication, we would be far ahead. The most dangerous plots tend to be those with the most participants, and an attack within the United States (like the 9/11 attacks) would almost certainly require coordination between terrorist leaders abroad and terrorists in this country, and such coordination would be very difficult to effectuate by means of couriers.

Since the American public has already surrendered much of its communicative privacy by its profligate use of analog cellphones, employers' email services, and Web services such as Amazon.com and Google which create essentially indelible records of customers' preferences, including political and sexual, I do not think the public would blanche at giving up a bit more to enable the government to monitor terrorist communications. The essential protection against governmental abuse of such a power would lie in rules that forbade the government to use information intercepted in such a surveillance program other than for national security purposes and that required that complete records of whose communications were actually intercepted, and why, and with what result, be submitted periodically to congressional watchdog committees, to departmental inspectors general, and to respected neutral agencies such as the General Accountability Office. I would be very interested in Geof Stone's evaluation of such proposals.

III. Stone Offers A Proposal

I don't agree that the public "has already surrendered much of its communicative privacy by its profligate use" of modern means of technology that "create essentially indelible records" of our communications, purchases, etc. Certainly, it's true that most people have embraced cells phones, email, and the internet without paying much, if any, attention to the extraordinary invasions of privacy they make possible. But this will change once people come to understand how vulnerable they are. It's a bit like electronic bugging and wiretapping in the first half of the twentieth century. It took fifty years for courts and legislatures to begin regulating such conduct, but once people realized the danger, government electronic surveillance was declared unconstitutional and private electronic surveillance was declared unlawful. The same will happen with respect to the modern means of communication. Once people recognize the danger, they will insist on regulation. So, I wouldn't leap to the conclusion that the public has "surrendered" its privacy. We are merely in transition.

Judge Posner suggests that "the essential protection against governmental abuse" must lie in rules that (a) forbid use of the information "other than for national security purposes" and (b) require oversight by congressional committees and neutral agencies. Recent experience teaches that such safeguards are porous, at best. It is useful to recall that one of the bete noirs of the Bush administration was the so-called "wall" created by the Department of Justice to prevent information obtained in lawful foreign intelligence surveillance authorized by the FISA court from being used for anything other than national security purposes. The purpose of the "wall" was to allow the government special flexibility in foreign intelligence investigations without creating an incentive for the government to "cheat" by using FISA warrants for ordinary criminal investigations. The "wall" was one of the first safeguards abolished after 9/11 because it was attacked as perverse. Of course, it wasn't perverse at all. To the contrary, it served exactly the function that Judge Posner now urges. But the "wall" crumbled as soon as pressure was placed on the system. And oversight is hardly a panacea. Congressional oversight since 9/11 has turned out to be meaningless, at least at a time when the executive and legislative branches are in the same partisan hands.

Nonetheless, there is a compelling need for some form of surveillance that is broader than what would be permissible under a strict probable cause regime. In Not a Suicide Pact, Judge Posner offers an interesting suggestion: "Suppose that the National Security Agency's listening devices gathered the entire world's electronic communications traffic, digitized it, and stored it in databases, where it was machine-searched for clues to terrorist activity, but the search programs were designed to hide from intelligence officers all data that contained no clues to terrorist plans or activity."

This might be the foundation for a compromise on which Judge Posner and I could agree. Suppose the NSA were authorized by legislation to intercept (in the sense described by Judge Posner) any international electronic communication for which it has reasonable grounds to believe that a participant in the communication is associated with a terrorist group. (The terms of course would need to be defined.) All such information would be digitized and stored (for a limited period of time), but could not be examined by any intelligence officer without probable cause. Probable cause could be determined either in the conventional manner or through the use of an algorithm that enables computers that search the database to determine probable cause based on words, phrases, personal connections, etc. In a sense, this is like a drug-sniffing dog, where the algorithm is the dog.

It is easy to imagine such algorithms. For example, it would be quite possible (I would imagine) to develop an algorithm that would determine based on the content and nature of messages whether there is probable cause to believe that a particular individual is a lawyer, or a doctor, or a psychotherapist. (How often does she use phrases like res ipsa loquitur and mens rea?)Presumably, it would also be possible to develop an algorithm for terrorists. The FISA court would have the authority to approve and review the use of such algorithms after hearing expert testimony.

Such a program would both substantially increase the ability of the government to identify terrorists (relative to a conventional probable cause standard) and substantially reduce the dangers of invasion of privacy and government abuse (relative to the NSA surveillance program). Moreover, I would add to this system Judge Posner's proposals for a "wall" and for various forms and levels of oversight. I would be very interested to hear Judge Posner's response.

IV. Posner Responds to Stone Proposal

I am sympathetic to Geof's proposal (though it doesn't go as far as I would like), but before discussing it let me register disagreement with three points, closely related to each other, that he makes:

1. I don't think the surrender of privacy to companies is based on ignorance. After all, Geof and I are among the surrenderers, and I daresay most members of the ACLU are as well. I think it's based, first, on the fact that Americans don't actually value privacy as much as the ACLU thinks, and, second and more interesting, that they don't worry a great deal about companies' invading their privacy because they realize that the purpose of the invasion is benign: it is to be able to sell consumers more products better matched to consumer preference. They do not have the same trust in the benignness of government surveillance. Nor should they, because consumer sovereignty does not describe the relation between government and the people. It is naïve to think that American-style democracy securely aligns popular preferences with the incentives of government officials and employees, whether in national security or any other domain of governmental activity. That is why I would couple extensive electronic surveillance with the two protective measures that I mentioned in my first post--forbidding use of intercepted communications for any purpose other than national security (and thus limiting, as Oren Kerr has proposed, the "plain view" doctrine of search and seizure law), and requiring that the details of each interception (who, why, what, and with what consequences) be reported periodically to watchdog committees in Congress, to the GAO, and to departmental inspectors general.

2. Would these controls be perfectly effective? Of course not. But then nothing is. I do not, however, consider the notorious "wall" that Geof mentions to be analogous. I must say first of all that I have never been able to determine whether there was a wall or, rather, whether it was simply a matter of the FBI and the CIA being unwilling, for bureaucratic reasons, to share information. The sharing of information between government agencies is impeded by the fact that one agency cannot sell its information to another; it can only swap; and barter is a clumsy method of exchange. But there is in any event a huge difference between, say, the CIA's failing to give the FBI information about a terrorist that might have enabled the FBI to arrest the terrorist before he flew a plane into the World Trade Center, and the CIA's (or more likely the NSA's) failing to give the FBI information about a nonterrorist that would enable the FBI to prosecute the person for killing an animal on the endangered species list.

3. Congressional oversight of intelligence and related national security programs has always been weak. I don't think it has made a difference whether Congress was controlled by a different party than the presidency. It is weak, as I explain in chapter 8 of my book Uncertain Shield, partly because congressional oversight of the executive branch is weak in general, partly because members of Congress tend to focus on domestic matters, partly because few of them have much knowledge about intelligence, and partly because oversight is split up among a large number of agencies, owing to the fact that the agencies themselves are distributed across a number of departments. I do not agree, however, that Congress is a mere rubber stamp, even when it in the hands of the same party as the presidency. We have seen this in recent months and weeks as Congress and the President have tussled over military tribunals and electronic surveillance.

Coming now to Geof's proposal, I understand him to be suggesting that the NSA be authorized by new legislation to intercept international communications if there are reasonable grounds to believe that at least one of the parties to the communication is a terrorist. The restrictions I have italicized strike me as too limiting. If two terrorists inside the United States communicate with each other, the interest in intercepting their communications is as great as when one of them is overseas. And, as important, it is not possible to discover who the terrorists are if before intercepting their communications you must have reasonable grounds to believe that at least one party to a communication is a terrorist. What I think national security requires is a two-stage process. In the first, computer search programs search the world's entire daily electronic traffic (to the extent feasible) for messages that are suspicious because of names or word clusters in the message, social security numbers or other personal identifying information besides names, the origin or destination of the message, and other suspicious characteristics. These messages, a minute fraction of all those screened by the search programs, would be listened to or read (as the case may be) by (human) intelligence officers. Computer screening is not a search, because a computer is not sentient. But listening to or reading private messages is, and, as Geof suggests, a properly configured search program might be sufficiently reliable to furnish reasonable suspicion or probable cause to read a message flagged by the computer program. Although probable cause is required for a warrant to conduct a search for evidence of ordinary crime, the Supreme Court in the Keith case suggested that the requirement might be relaxed in a search for evidence of conduct that endangers national security, even if the search involves intercepting a purely domestic communication. In such a case reasonable suspicion might suffice.

Finis