Marginal Utility

by Tom Bozzo

Over at Dartblog, Joe Malchow amended his post on Feingold responding to my reply, and we agree that the individual liberties issues are serious and not self-evidently trumped by presidential wartime powers. That is not inconsiderable common ground.

He complains that I unfairly call the administration's description of the program "inoperative spin." What I mean specifically is that the administration describes the program in terms that are at odds with reporting in both the NYT and Washington Post, as well as deductive reasoning employed in the blogiverse, suggesting that the program involves large scale data mining. So the AG said:

[T]he program is triggered only when a career professional at the NSA has reasonable grounds to believe that one of the parties to a communication is a member or agent of Al Qaida or an affiliated terrorist organization. As the president has said, if you're talking with Al Qaida, we want to know what you're saying.

Which, being part of the AG's prepared remarks, clearly is crafted to put the program in the best possible light. The reporting implies that the AG is exaggerating the reasonableness of the NSA's belief in subjects' connections to Al Qaida (very high dead end rate for leads followed-up by the FBI, per NYT) and failing to mention the machine filtering stages of the process (per the Post; where the scrutiny is less intrusive in a sense, but has an even less reasonable basis, and because of the possibility for screening massive amounts of communications according to secret criteria and employing unknowable data handling procedures with the results, a nearly vertical slope of ice for civil liberties). As these omissions are material and intended to make the program appear to be something only "someone" who intended to capitulate in the War on Terror could conceivably oppose, I term it "spin." Of course, the reporting could be wrong, though the arrival of the Post on the scene reduces the likelihood of a single-point failure at the NYT. But it would have been more accurate of me to have said "increasingly inoperative spin."

Last, Joe goes out on a limb in suggesting that the program adheres to the "probable cause" standard. As seen in the quote above, the AG's prepared remarks avoided the term, which is after all pregnant with legal meaning. Ditto former NSA chief Gen. Michael Hayden, pilloried in the left blogiverse (e.g., at TalkLeft) for rewriting the Fourth Amendment.

In exchanges with Sens. DeWine and Cornyn, the AG contended that the program adhered to a "probable cause" standard, but that doesn't mean it's the one you'd necessarily think of. The key exchange, IMHO:

GONZALES: Well, certainly, to obtain an order from the FISA Court, the court has to be satisfied that there's probable cause to believe that the target is either a foreign power or an agent of a foreign power and probably [sic] cause to believe that the facility being targeted is actually being used or about to be used by a foreign power or an agent of a foreign power.

CORNYN: Stated another way...

GONZALES: OK.

CORNYN: The problem with FISA, as written, is that the surveillance it authorizes is unusable to discover who is a terrorist, is [sic] distinct from eavesdropping on known terrorists.

Would you agree with that?

GONZALES: That would be a different way of putting it, yes, sir.

CORNYN: You would agree with that statement?

GONZALES: Yes, sir. [Emphasis added.]

So if they had "probable cause" in the usual sense, they could have just gone to the FISA court, retroactively if need be, obtained warrants, and there'd be no controversy today. Instead (and remarkably), the AG admits, via Cornyn's rephrasing of his statement, that the NSA surveillance is directed towards contacts that do not involve known terrorists, or even suspected terrorists in the usual "probable cause" sense.

Instead — and you might read the exchange with DeWine for a laugh — the AG laid out a probable cause standard that one might call the "0.002 is a probability" sense of the term.