The Flow of Mistrust

Richard Fernandez:

One of the conundrums of delegated power is that to be effective, it also has to be capable of potential abuse. Deprive an agent of discretion and the point of hiring him disappears. He may be able to do many things, but not everything he can legally do should be done. Take the question of whether the NSA has too much power. Commenter RWE3  compared it to the USAF’s even more awesome power. “The question in reality is not whether the NSA is accessing such data. Of course they have the capability to do so; it’s their job. It’s like asking if the USAF has the capability to nuke Chicago; if they cannot they better well explain why the hell not.”

We grant agents enormous power but on the implicit understanding that they selectively use it.  Andrew McCarthy makes a similar argument. He says the problem with arguing the NSA has too much leeway is that they simply had a larger version of the power granted to every prosecutor. The problem is not with the grant of power, but the abuse of power.

Again, as noted above, usage records for services, like telephone service, to which a customer subscribes do not belong to the subscriber. They are the property of the service provider. As a result, they have never had any Fourth Amendment protection, and they have precious little statutory protection. Again, we on the national security right wanted this legal reality, long ingrained in routine law-enforcement, to be reflected in national security investigations.

When I was a federal prosecutor, if I wanted phone records for an investigation, I wrote a subpoena and had an agent serve it on the relevant phone company. I did not have to go to court. I did not have to make any showing to a judge that the records were relevant, much less that I had probable cause to believe the customer whose records I wanted was suspected of committing a crime….

It has long been the law that grand juries do not have to suspect a crime in order to conduct an investigation; they can investigate, if they wish, just to satisfy themselves that no crime has been committed. As a practical matter, that never happens. Grand juries, agents, and prosecutors are too busy with real crime to conduct witch-hunts….

I could have compelled the production of phone records of countless innocent people. If I did not have a good reason for doing so, it would have been an abuse of my power. But it would not have been a violation of laws that, quite intentionally, allow the executive branch to compel non-privileged records with virtually no oversight. It would mean we’d need a new, more responsible prosecutor, not new laws.

Of course the USAF is not in the business of nuking American cities, even if it could. Though that does not prevent Hollywood from imagining scenarios where the President orders New York destroyed, usually to prevent the Zombie apocalypse from spreading or as a last ditch measure against Space Aliens. But the fact remains that as with a guns anything powerful enough to do the job on enemies can do a job — on civilians.

One solution to this problem is to remove all sources of danger. This is the logic behind campaigns to create a world without nuclear weapons, wiretapping or guns. And it’s had to argue against this in principle, other than to point out that we have been unable to figure out how to do it. The bad guys maddeningly insist on keeping their nukes, China will undoubtedly keep its hackers and the criminals will insist on retaining their guns.  So while we can decree that henceforth the USAF will no longer have nukes, the wisdom of that course is doubtful for as long as Russia, China or Pakistan keep theirs.

Since we can’t control things the next best approach is to control people through molding organizational cultures and implementing accountability.  That is the approach of checks and balances and the role played — until recently — by culture. It is fairly safe to assume that the generals in charge of the USAF don’t spend much time thinking about how to nuke America, and so “as a practical matter” — to borrow a phrase from McCarthy — “that never happens”.

We have confidence in the USAF culture, which is sometimes referred to as “trust”. We trust the gun in the hands of policemen; in the hands of our friends on the firing range. We form trust networks.  In the current debate over surveillance it’s useful to ask ourselves, in this instance who do we trust?

Read more