Forget North Korea. Forget the Islamic State. Forget the Iranian nuclear program. I want to tell you about my exchange with Edward Snowden---and the amazing things he seems to have said in it.
The exchange took place a couple of weeks ago, when I appeared as a last-minute sub-in on a panel at the Cato Institute's surveillance conference. I was there, as I jokingly told the audience at the outset of my remarks, to represent unprincipled statism---though I like to think that my statism is a principle. (Nobody even cracked a smile at this joke.) Specifically, I was there at the request of Cato's excellent surveillance scholar, Julian Sanchez, to defend the notion that Congress should not---and probably cannot constitutionally---regulate by statute the universe of surveillance now conducted under Executive Order 12333. My remarks drew an interesting, and I think revealing, response from Snowden, who addressed the conference by video later in the day.
To understand the radicalism of what Snowden was saying, you have to start with the comments I made. Previous speakers on the panel---Marcy Wheeler, John Napier Tye, and Laura Donohue---had all objected to the breadth of collection under 12333 and Donohue, in particular, had argued for bringing 12333 collection under the Foreign Intelligence Surveillance Act. I started my remarks (which run from roughly 47:30 to roughly 55:30 of the video below) by pointing out that at least some foreign collection against non-US persons does not make sense to treat under statutory law:
There's a temptation when we all sit here to think about the many ways that we can regulate the traditionally unregulated space of foreign espionage. And it's worth just taking a step back, and a deep breath, and saying, "What should Congress have to say about the rules when Barack Obama wants to know what Vladimir Putin is talking about?" And if that question doesn't give you any pause . . . then I lose and yes, you should regulate every component of every aspect of foreign collection.
[But t]here is a limit to Congress's authority to regulate some of this stuff. I think most people, going back to my Vladimir Putin question, would say that is actually an area of inherent presidential authority.
There are very few people who contest that we should not be able to pursue investigations using almost any authority against individuals where you can get a judge to sign a particularized warrant. Benjamin Wittes earlier, he basically argued that, should we have legislators involved? Should we have public rules about the way we apply our surveillance capabilities because Vladimir Putin might know about it? I say yes, because there is no court in the world---well, at least, no court outside Russia---who would not go, "This man is an agent of the foreign government. I mean, he's the head of the government." Of course, they will say, "this guy has access to some kind of foreign intelligence value. We'll sign the warrant for him." If we know about the authorities, if we know about how they are used, there's no problem whether they are public or private, because he can't elide them. He can't hide in the noise. We know what his capabilities are.Snowden returned to my Putin example later in his comments (around 44:00) and went further, arguing that we don't really need an intelligence community at all---much less a FISA process:
Particularly in the context of state security agencies, spy agencies, do we really need them? Aren't they a product of developing societies, developing governments, developing civilizations, that can be replaced by our methods of law enforcement? When we talked about, for example, earlier Ben Wittes's reference to Vladimir Putin, do we really need the NSA and a secret court to say, "hey, we're going to wiretap Putin"? or is it easy enough to get any judge to sign that warrant? I don't think we need a special mechanism to provide for targeted wiretaps or targeted efforts to gain intelligence related to a particularized investigation. And it's not a far leap to say we can provide for legislation that affords that outside of secret organizations that inevitably push the line beyond what the public would agree with.Snowden's point is sufficiently opaque to me that I find responding a little difficult. First of all, Snowden is responding to a point I did not make: I was, in fact, not saying that the problem with public law and applying the FISA process to surveillance of Putin would be making legal authorities public that should be secret. My point was, rather, that there's a constitutional limit on Congress's authority to regulate foreign intelligence activity, and that one doesn't have to be Dick Cheney to believe that there's some zone of inherent presidential power to conduct foreign policy that would include the conduct of espionage against, say, a foreign head of state overseas. As I said in my remarks, I am not married at all to the idea that Congress has no authority to regulate in areas currently governed by 12333. But I do think there's a core that Congress cannot constitutionally touch. But let's leave aside the ships-passing-in-the-night quality of Snowden and my legal discussion and pause a moment to consider the policy ideas he advanced, of which there are two. First, Snowden proposes that all foreign intelligence gathering should be particularized and subject to individual judicial review---even against foreign hostile heads of state. Second, he proposes that we not really have an intelligence community and specialized judicial instruments to oversee it but use exclusively law enforcement and conventional judicial tools for foreign surveillance. In short, he's proposing a revolution in the entire way the U.S. government operates overseas, organizes its security apparatus domestically, and treats conceptually foreign and domestic threats. I couldn't tell from Snowden's comments whether he even understands the magnitude of what he's proposing here. A regular court supervising a regular law enforcement agency, after all, would not be able to authorize surveillance against Putin absent probable cause that he had committed a crime. Putin is a bad guy, but I'm not sure he's rightly the subject of U.S. criminal investigations, and a great many lawful intelligence targets certainly are not. The sources of authority to conduct foreign espionage simply lie in a different place from the sources of authority to investigate criminal behavior, and the parameters of those authorities are very different from one another too. I don't want to paint with too broad a brush here and suggest that everyone who's sympathetic to what Snowden did is really arguing for tearing down the intelligence community and operating overseas only by means of law enforcement. That's certainly not true. But it surely worth noting that this is what Edward Snowden is proposing. To be sure, Snowden was speaking extemporaneously and might have not thought through what he was really saying. But I've listened to his remarks repeatedly and they seem to me plainly to suggest getting rid of non-law enforcement surveillance. That's a pretty radical idea.