The government says quite reasonably that if we had a public debate about these techniques then the techniques would be rendered either ineffective or less effective. That's what makes it so hard. So in the end the public, in my view really, has choice but to give a lot of trust to the secret court and the members of congress who are paying attention and the executive branch. [NPR]
That’s Chicago Law professor Eric Posner discussing the recently leaked intelligence gathering techniques used by the NSA on NPR’s All Things Considered. Too bad Posner didn’t consider all the things, more like he just considered one of the things. If the government says they need it, then they need it, and if they need to not tell us what it is, then that’s okay too.
Posner makes the same argument in a bit more depth in a debate hosted by the New York Times. Just in case it seemed like a slip up or an out of context quotation, nope. In his words, "I don't see a problem here." Your average AP US History student can at least identify the problem.
There is of course a balance to be struck between the government’s need to keep certain operations secret in order to make them effective and the public’s right to a democratic government. Details of troop deployments, the precise algorithms used to flag airline passengers, what information certain captured terrorists have disclosed – all those things make sense to keep secret. But the fact that troops are being deployed at all? That airline passengers are being flagged for extra scrutiny? That we’re capturing and interrogating terrorists? Those are all the types of things necessary for the citizenry to know, and letting them know does not compromise the government’s mission one iota.
The government can keep secret the exact leads its gotten from gathering telephony metadata, but the fact that it’s collecting the phone records of every single person is the type of thing that needs to be disclosed to the public and subject to open debate.
And just to show how wrong Posner is on this, disclosing surveillance techniques typically increases their efficacy, not decreases it. Announcing DUI checkpoints decreases the number of drunk people on the road. It allows some people to get drunk and just take a detour around the checkpoint, but on the whole the mere knowledge that checkpoints are out there causes plenty of people to either stay home or just not drink as much. Same goes for cameras to catch people speeding or running red lights, bag checks at baseball games to prevent people from bringing in their own booze, and those “Protect by Brinks Home Security” window stickers to discourage burglaries.
Someone who is really determined will still find away around these techniques. They’ll take detours, put their flask in cargo pants pockets, or just break into another house. But people who are less committed? They’ll slow their car down, shell out the extra money for stadium beer, and stick to slinging crystal instead of moving up to B&E.
So what about announcing these techniques to terrorists? Surely those people are more committed to their job than the average National’s fan who just doesn’t want to pay for the most expensive stadium beer in the country. If we announce our techniques, won’t they just find a way around them?
Not if the technique is monitoring every phone call and e-mail conversation. Getting around a DUI checkpoint is easy. Communicating with your international terror network without using an electronic medium doesn’t have such an easy workaround. Bin Laden’s courier could only run so far. Letting terrorists know about the NSA’s data collection is more likely to prevent acts of terrorism than keeping it secret.
Except for one little hitch. The NSA’s data collection will be less effective not because would-be terrorists will find a work around, but because the American citizenry might fight back against it.
“If we told you, terrorists could easily avoid our surveillance” is a fair argument.
“If we told you, you wouldn’t let us do it any more” is not. And we don’t just need to trust the government on this. The Constitution is based on the premise that our government can’t be trusted. That’s why we have a democracy, why we have frequent elections, why the power of the federal government is limited, and why we have a Bill of Rights just to double down on our view that even a limited federal government still can’t be trusted.
Well, at least Posner doesn’t teach criminal procedure, or constitutional law, or privacy law, or the law of being a decent human being. He just teaches contracts.
…Which would be okay, except that earlier in his NPR segment, when talking about data collection by private companies such as Google and Facebook, he admits to not reading the terms and conditions. Not for the same lazy reason the rest of us have for skipping over them, but because he’s incapable of reading and understanding them:
You can’t read those things because they’re too long and complicated, and I teach contract law.
Jesus NSA Christ! You teach contract law at a top five law school and you are incapable of understanding the most ubiquitous contract in the world. The hell qualifies you to teach contract law then? That you understand promissory estoppels? Big fucking deal. Many of your students are going to go on to not only read but to write contracts that are far longer, more complicated, and involve not only complex legal issues but also issues unique to the client’s industry, so what makes you qualified to train them?
Worse than the fact that Posner can’t read an extremely common contract, and that he thinks a benevolent (fingers crossed) dictatorship is a perfectly fine form of government, is that he seems to have just given up. Law is complex? Fuck it, won’t read it. Government wants to encroach on my rights? Fuck it, let them.
Students Posner teaches will likely go on to be leaders in firms, professors, judges, and probably some politicians and high ranking government officers. Perhaps, just perhaps, Posner should get out of the way and let these people get their education from someone who still gives a damn.
PS: If you happen to be Eric Posner, here's some videos for you to watch while you're busy counting down the minutes until retirement: