Wednesday, December 10, 2014

Generalizing from the CIA to the NSA

Dianne Feinstein was clearly one of the main people behind the creation and release of a Senate report that found that torture by the CIA, in addition to everything else wrong with it, did not serve any useful purpose, that claims by the organization that torture had produced critical information were lies. She has also been one of the principle supporters of the NSA practice of mass surveillance, arguably illegal and indeed unconstitutional. The NSA has defended that program by claiming that it produced critical information. That claim too has been challenged, although not, so far, by Feinstein.

Which raises an interesting question. Will Feinstein be willing to generalize her conclusion? Having discovered that one large federal bureaucracy engaged in controversial policies to fight terrorism has been deliberately lying about their effects, will she become less willing to believe another large federal bureaucracy also engaged in controversial policies to fight terrorism?

There are two reasons she might not. 

One is that the organizations are different; she may believe one more to be trusted than the other. I find that argument unconvincing in part because of a conversation many years ago with a friend who, although not an NSA employee, was part of the culture around the NSA. He assured me, and I am sure believed, that the NSA could be trusted, that organization culture would prevent them from illegal spying on U.S. citizens even if they thought they could get away with it. That was well before the fact came out that the NSA had been intercepting phone calls without the authorization required by the Foreign Intelligence Surveillance Act, in violation of federal law.

A second and less creditable reason she may be unwilling to generalize her conclusion is that the CIA misdeeds covered in the report occurred in response to the 9/11 attack, with the result that the misdeeds can be reasonably blamed on a Republican administration.  I have not read the Senate report, but I gather from news stories on it that it does not go into the question of whether similar misdeeds occurred earlier under other administrations. NSA spying has been going on for a long time under both Republicans and Democrats  and continues under the current administration. 

It will be interesting to see if Feinstein joins in the calls for criminal prosecution of some of those responsible for CIA torture. I do not remember her arguing for criminal prosecution of NSA employees who violated FISA or against Congress immunizing phone companies from liability for their illegal sharing of customer information with federal authorities.

Whether or not Feinstein is willing to generalize from the CIA to the NSA, the important question is whether other people are.

11 Comments:

At 2:58 PM, December 10, 2014, Blogger John David Galt said...

It is my understanding that a Senator who wasn't reelected (Leahy?) was behind the release of the torture report, and that Feinstein was against doing so -- but since she couldn't prevent it, she participated in redacting it.

I believe DiFi is a complete pawn of the NSA, probably because they have gathered material that could be used to blackmail her. (And that they've done similarly to the President and as many other politicians as they can, to prevent anyone from curtailing their powers or cutting their budget or payroll.)

Reason did an amusing piece on how DiFi had no problem with the NSA tapping everybody's phones -- until she discovered that her own were included.

If Obama is serious about ending torture, he should show it by signing the UN convention against torture and putting it to a vote in the Senate, and do it now since its chances will be worse in the Republican controlled Senate. (I believe the US and Eritrea are the last two countries in the world which have not signed it.)

And if he actually meant his campaign promise to close Gitmo, I believe he can do that unilaterally simply by declaring that the emergency which justified suspending habeas corpus has ended.

 
At 1:34 AM, December 11, 2014, Anonymous Max Gödl said...

The Senate report says 119 people were tortured under G.W. Bush. According to the source below, over 3,000 people, including nearly 500 civilians, have been killed in drone strikes under the Obama administration. These people were deprived of their lives without due process of law, i.e., they were murdered. So will those who call Bush a torturer call Obama a murderer?

source: http://www.thebureauinvestigates.com/who/

 
At 7:20 AM, December 11, 2014, Anonymous Greg Yarmit said...

Why stop there? Why not have historical trials against our former leaders? Some of them are permanent demigods in American pantheon. We can learn from our mistakes.
Some are more obvious criminals than others:
Truman – atomic bomb
Roosevelt – annihilation of German cities
Lincoln – waging total war against fellow Americans.
Oh wait… We had wars then …

 
At 10:57 AM, December 11, 2014, Blogger David Friedman said...

Under either U.S. law or the Geneva Convention, killing civilians unintentionally in the process of fighting a war doesn't count as a crime. From that point of view, one could make a better case against Truman, Roosevelt, and Churchill than against Obama, since all three supported attacks aimed mainly at civilian targets.

 
At 2:14 AM, December 12, 2014, Anonymous Max Gödl said...

As far as I know the US never declared war against Al Qaida, the Taliban or Pakistan, where most of the drone strikes were carried out. The Obama administration is not fighting a war, they're killing people on the basis that some bureaucrat says they are terrorists.

 
At 10:03 AM, December 12, 2014, Anonymous Anonymous said...

A third reason is that the CIA and NSA are accused of different sorts of crimes, and Senator Feinstein might see the one sort as being much more forgivable or even justifiable than the other.

I can easily imagine people who would want to go easy on burglars while coming down hard on rapists - or vice versa, for that matter. Likewise I can imagine Feinstein seeing mass surveillance as something excusable or even justifiable while being outraged by torture. I can also imagine conservatives who would take the opposite position: That a program to torture suspected terrorists is forgivable or even justified, while mass surveillance of US citizens is an outrage.

 
At 12:30 PM, December 12, 2014, Anonymous Anonymous said...

"Having discovered that one large federal bureaucracy engaged in controversial policies to fight terrorism has been deliberately lying about their effects, will she become LESS willing to believe another large federal bureaucracy also engaged in controversial policies to fight terrorism?"

??

 
At 12:31 PM, December 12, 2014, Anonymous Anonymous said...

"Having discovered that one large federal bureaucracy engaged in controversial policies to fight terrorism has been deliberately lying about their effects, will she become LESS willing to believe another large federal bureaucracy also engaged in controversial policies to fight terrorism?"

??

 
At 12:40 PM, December 12, 2014, Anonymous Greg Yarmit said...

I could not help but give link to Charles Krauthammer article. (http://www.washingtonpost.com/opinions/charles-krauthammer-the-torture-report-is-a-travesty/2014/12/11/53fedf80-8168-11e4-81fd-8c4814dfa9d7_story.html) The most interesting for me is the question “what is the alternative?”. Would you still feel superior with moral code and legality of conduct if we had another attack? How possible to except notion that “other means are possible” without possibility to prove it? David wrote – “the gain might outweigh the loss”. He sounded though that he was not convinced by this argument but I don’t understand why, at least, in this real case.

 
At 1:00 PM, December 12, 2014, Blogger David Friedman said...

Greg: I think I answered your question at the end of my previous post. I'm not willing to claim that the end never justifies the means. But in deciding what means the government is allowed to use, the question is not whether some approach could ever be useful but whether the ways in which it will actually get used are on net desirable.

You will notice that in this post I was focusing not on the moral objections to torture but on the claim that it did not in fact work, did not produce useful information.

 
At 1:02 PM, December 12, 2014, Blogger David Friedman said...

Anonymous:

If Feinstein's view was that torture had produced valuable information but was still wrong, your point would be legitimate—she might regard torture but not surveillance as bad enough not to be worth doing even for desirable results. But the point of my post was that, according to her, it didn't produce valuable information. Apply that conclusion to surveillance and the argument for it goes away, since even if less bad than torture, it is still on its own undesirable.

 

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