Thursday, December 22, 2005

When David Brooks is You

When Big Brother Is You
Published: December 22, 2005

Let's play "You're the President." Let's put you in the Oval Office and see what kind of decisions you make in real-world circumstances.

Because you are president, you are briefed each day on terrorist threats to this country. These briefings are as psychologically intense as an episode of "24," with descriptions of specific bad guys and their activities.

But if the briefing says "Bin Laden determined to strike in the United States" you won't become unduly concerned.

This has had a cumulative effect on your psychology. While many of your fellow citizens have relaxed as 9/11 has faded into history,

you will take more and longer vacations than any other President in history

you don't have that luxury. Your briefings, and some terrifying false alarms that haven't been made public,

unless they can be used to pump up your re-election campaign or deflect from political embarrassments

keep you in a perpetual state of high alert.

So much so that you will refuse to read newspapers, preferring to get all your information from yes men

You know that one of the few advantages we have over the terrorists is technological superiority.

because your yes men told you so.

You are damned sure you are going to use every geek, every computer program and every surveillance technique at your disposal to prevent a future attack.

Unless the geek is gay.

You have inherited the FISA process to regulate this intelligence gathering. It's a pretty good process. FISA judges usually issue warrants quickly and, when appropriate, retroactively.

But the FISA process has shortcomings.

It doesn't allow you to monitor groups simply because you consider them political enemies

First, it's predicated on a division between foreign and domestic activity that has been rendered obsolete by today's mobile communications methods. Second, the process still involves some cumbersome paperwork and bureaucratic foot-dragging. Finally, the case-by-case FISA method is ill suited to the new information-gathering technologies, which include things like automated systems that troll through vast amounts of data looking for patterns, voices and chains of contacts.

Over time you've become convinced that these new technologies, which are run by National Security Agency professionals and shielded from political influence,

just like FEMA, the EPA, the Commerce Department, the FDA, the CIA, the NOAA, and the military

help save lives. You've seen that these new surveillance techniques helped foil an attack on the Brooklyn Bridge and bombing assaults in Britain. The question is, How do you regulate the new procedures to protect liberties?

Your aides present you with three options. First, you can ask Congress to rewrite the FISA law to keep pace with the new technologies. This has some drawbacks. How exactly do you write a law to cope with this fast-changing information war? Even if you could set up a procedure to get warrant requests to a judge, how would that judge be able to tell which of the thousands of possible information nodes is worth looking into, or which belongs to a U.S. citizen? Swamped in the data-fog, the courts would just become meaningless rubber-stamps. Finally, it's likely that some member of Congress would leak details of the program during the legislative process, thus destroying it.

Your second option is to avoid Congress and set up a self-policing mechanism using the Justice Department and the N.S.A.'s inspector general. This option, too, has drawbacks. First, it's legally dubious. Second, it's quite possible that some intelligence bureaucrat will leak information about the programs, especially if he or she hopes to swing a presidential election against you. Third, if details do come out and Congressional leaders learn you went around them, there will be blowback that will not only destroy the program, but will also lead to more restrictions on executive power.

You will choose this option. You will ensure that the paper I write for helps you get re-elected by refusing to share what it knows about your choice with the public.

Your third option is informal Congressional oversight. You could pull a few senior members of Congress into your office and you could say: "Look, given the fast-moving nature of this conflict, there is no way we can codify rules about what is permissible and impermissible. Instead we will create a social contract. I'll trust you by telling you everything we are doing to combat terror. You'll trust me enough to give me the flexibility I need to keep the country safe. If we have disagreements, we will work them out in private."

These are your three options, Mr. President, and these are essentially the three options George Bush faced a few years ago. (He chose Option 2.)

And then he bragged about it it in a speech.

But before you decide, let me tell you one more thing: Options 1 and 2 won't work, and Option 3 is impossible.

Options 1 and 2 won't work because they lead to legalistic rigidities and leaks that will destroy the program. Option 3 is impossible because it requires trust. It requires that the president and the Congressional leaders trust one another. It requires Democrats and Republicans to trust one another. We don't have that kind of trust in America today.

Because you have used the political capital gained during the aftermath of 9/11 to divide the country through smears against opponents, homophobia, religious intolerance, denial of global warming and a systematic attack on the social safety net to please your corporate masters.

That leaves you with Option 4: Face the fact that we will not be using our best technology to monitor the communications of known terrorists. Face the fact that the odds of an attack on America just went up.

Confidential to GWB & DC - please remember my loyalty after you've used this inevitable second attack to gain absolute power.