So the Democratic Congress has caved in to Republican fear-mongering on illegal surveillance (ht Glenn Greenwald). Barack Obama has distanced himself from the legislation in a carefully calibrated way that falls well short of outright condemnation of the whole package, though he is at least firmly opposed to the worst element, blanket retroactive immunity for the telcos. (Update: Jack Balkin explains why.)
It's striking that even the most gung-ho opponents of the legislation like Greenwald agree on one thing: the offence is lawless surveillance of Americans; there's no problem at all in continuing the NSA's limitless right to spy on mere foreigners.
Allow this foreigner to dissent. Here's my minority report of one. Thesis:
The invasion of the privacy of any human being by the the agencies of any government should be subject to law, due process, and proportionality. The public interest in gathering information about crimes and threats to national security has always to be balanced against the private interest in privacy, which is both a a fundamental human right and a bulwark of the public interest in sustaining democratic institutions.
The converse, exceptionalist view that only Americans should have
enforceable rights is a repellent outgrowth of imperial arrogance. I'm
a Brit, we've been there before. The founders of the United States were
universalists who understood the First Amendment as an operational
embodiment of the rights of man within the tradition of the English
common law, not a unique revelation to a chosen people. It shouldn't be
necessary, but let me rehearse the standard arguments.
Another difficult dimension is the relationship with foreign governments. These span a continuum from regular cooperation with a government agency in a country with strong privacy rights, like Switzerland or the Netherlands, acting under the supervision of its own courts, to intelligence operations against the government agencies of adversarial countries like Iran, Sudan and North Korea, whose domestic legal order is largely alien. The calls on semi-allies like Pakistan and Russia are genuinely difficult.
Nor is it self-evident that the FISA court as it stands is the best body to exercise a rule-of-law check on the surveillance of foreigner-to foreigner communications, but it's an expert and trusted body and a sensible place to start.
Since the legislation going through Congress is a reactionary mess, a fresh start is clearly needed. I propose that it include some minimal regulation of surveillance of foreigners:
* recognition of the principle of universal privacy rights that can
only be breached for cause (principally national security and law
enforcement);
* appropriate supervision by a qualified and trusted
body of the adequacy of the causes claimed, on a scale of standards
below those applicable to citizens but never trivial;
* an automatic wave-through of surveillance carried out at the request
of a law-enforcement agency of a country with strong privacy
protection, acting under judicial supervision;
* a ban on pure fishing;
* statistical reporting by categories of operation.