The result, by analogy to Bruce Schneier’s idea of “security theater,” is a kind of “oversight theater.” We have what appear to be an array of monitoring mechanisms in place to check intelligence surveillance, but the watchdogs will in practice often lack a full picture of what they’re supposed to be overseeing. During the Bush administration, a handful of legislators were briefed on the National Security’s Agency’s program of warrantless wiretapping, but one of those few, Rep. Jane Harman (D-CA), has since asserted that she didn’t understand the program was being conducted beyond the limits of FISA, because she was forbidden from consulting attorneys with expertise in that obscure and complex statute. Only after the New York Times broke the warrantless wiretapping story in late 2005 did Harman feel at liberty to discuss the details that had been published with an expert on national security law, who confirmed that the program as it had been described could not possibly comply with FISA. Others, such as Sen. Jay Rockefeller (D-WV), similarly complained that the briefings legislators had received on the program were too thin to be of much use. During the debate over reauthorization of parts of the Patriot Act , Rep. Mike Quigley (D-IL) expressed his own frustration about the difficulty of determining what kind of reform might be necessary.  “I am not even sure at some point what I can share with my staff to discuss, what I can share with anyone on this floor, or what questions I can ask without violating some of those [secrecy] issues,” Quigley complained during a November mark-up session. If legislators don’t understand what they’re looking at, formal access to classified information is about as meaningful as the ability to be briefed in Japanese.

In a recent post at Cato’s blog, I mentioned a rather striking illustration of this problem that I only recently discovered myself. The USA PATRIOT Reauthorization and Improvement Act of 2005 (actually passed in 2006) made a number of changes to Patriot surveillance powers, among them a provision requiring special high-level authorization before certain categories of sensitive records could be obtained under FISA’s “business records” provision, usually referred to as Section 215. The very slight contemporary discussion of this change seems to have universally taken for granted that this was an added limitation on intelligence powers.  The legal analysis provided by the nonpartisan Congressional Research Service characterized these as “enhanced procedural protections”:

Section 106(a)(2) of the Act adds 50 U.S.C. 1861(a)(3), requiring that an application for a 215 order for the production of certain sensitive categories of records, such as library, bookstore, firearm sales, tax return, educational, and medical records, must be personally approved by one of the following three high-level officials: the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security. This provision was included as an attempt to allay concerns over federal authorities abusing section 215 authority to obtain sensitive types of records

In fact, the effect of this change was to enable access to many of these records for the first time. Unlike many other provisions of federal surveillance law, §215 doesn’t contain language establishing that its procedures apply “notwithstanding any other law.” But many types of sensitive records are, in fact, protected by an array of other federal laws providing enhanced privacy safeguards. For example, The Family Educational Rights and Privacy Act, commonly known as the Buckley Amendment, protects many educational records. And according to a report by the Office of the Inspector General, Justice Department attorneys had concluded that those other statutes also limited the use of §215 orders. It was only after the passage of the reauthorization bill, which made explicit reference to various protected types of records, that they determined that the §215 protocol overrode the  higher standards established by other federal laws:

According to [National Security Law Branch] and [Office of Intelligence Policy and Review] attorneys, this legal impediment to obtaining educational records has been addressed.  Section 106(a)(2) of the Reauthorization Act amended FISA by adding 50 U.S.C. §1861(a)(3), which specifically addresses educational, medical, tax and other sensitive categories of business records.  The amendment provided that when the FBI is requesting such items, the request must be personally approved by the FBI Director, the FBI Deputy Director, or the Executive Assistant Director for National Security. According to several NSLB and OPPR attorneys we interviewed, because this provision clarifies that educational records are obtainable through the use of a Section 215 order, the non-disclosure provisions of Section 215 apply rather than the notification provisions of the Buckley Amendment.

Leave aside, for the moment, the question of what the standard for access to these records ought to be. What should be striking is that the people who voted on the language in the reauthorization bill seem to have believed it would create a stricter standard for access to the covered records, not a weaker one. It should be mentioned that this provision was one of the few “safeguards” to be included in the Republican version of the reauthorization statute produced in conference committee, and it’s possible that some of those responsible for its inclusion understood what its true effect would be.  But it appears that even Sen. Patrick Leahy (D-VT), who now chairs the Senate Judiciary Committee and is surely one of the most knowledgeable and attentive legislators on surveillance policy, was unaware of how DOJ had construed the law:

While I believe that the conference report is an improvement over  current law, the provisions related to section 215, national security letters, and roving wiretaps have still given me pause. First, under  section 215, also called the business records provision, current law allows the Justice Department to obtain medical records, business records, library records, or other tangible items of individuals by  merely showing that the items are relevant to a terrorism investigation.

Crucially, I can’t find any indication that any of the various civil liberties groups who were following the reauthorization process understood this either. That’s important because in most policy areas, outside lobbying groups—in addition to pushing for their preferred outcomes—effectively subsidize the legislative process by providing what amount to free legal analysis and consulting services.  In the intelligence arena, however, there’s a stark information asymmetry: The intelligence officials and DOJ attorneys who brief members of Congress have access to an enormous amount of information that is unavailable to groups like the American Civil Liberties Union or the Electronic Frontier Foundation. Legislators and their overburdened staffs have access to the relevant information in theory, but there’s a firewall between them and the outside groups to whom legislative analysis functions are often effectively outsourced.

The problem in its general form is hardly new—EFF attorney Kevin Bankston has analyzed a variety of other surveillance contexts in which a similar “secret law” problem exists. But it’s harder to think of a more pointed illustration of the problem of “oversight theater” than this. The overseers—or at least some of them—understood themselves to be carrying out their watchdog function by tightening the safeguards on sensitive records, but unwittingly achieved the opposite result by implying that the existing safeguards had been superseded. It’s a good case to bear in mind when surveillance hawks argue that vigorous legislative oversight is any kind of functional substitute for the traditional judicial scrutiny we’ve been diluting away.

Pearl and the Beard – Will Smith Medley from Goddamn Cobras Collective on Vimeo.

Why?  Well, because for many types of cases, few other people have an incentive to bear the burden of fighting all the way to the Supreme Court.  If you can get acquitted on the merits, it’s not worth a protracted battle over the procedural fine points—and even if you’re looking for damages, the government will often prefer a settlement rather than taking a fight with a sympathetic defendant to the top.

Charles Katz really was involved in illegal gambling, but it’s his case that established a Fourth Amendment right to be free from warrantless wiretaps.   Klansman Clarence Brandenburg really was advocating “revengeance” against Jews and African Americans (though in the latter case I’m paraphrasing)—but I owe him my right to express radical political views as long as I’m not directly inciting violence. Crucial Fourth Amendment cases protecting the sanctity of the home involved cocaine smuggling rings, marijuana growers, and thieves.

Many of them were, to put it mildly, unsympathetic characters whose “values” I would not want to be “shared” by high-ranking attorneys in the Justice Department.  Fortunately, competent attorneys argued both sides of those cases, not because of their personal feelings about the defendants, but because the legal questions at the hearts of those cases had larger implications for the kind of country we’re going to live in.  And our constitutional order works, when it does, because the Court is directed to the full range of core issues involved by thoughtful advocates who present them forcefully and clearly.

In some of the cases worked by attorneys now at DOJ, the Supreme Court agreed that the argument on the side of the Guantanamo detainees—many of whom, recall, turn out not to have been bad guys—was legally stronger. You can wish the cases had been decided differently.  But if you believe at all in the rule of law, you can’t wish for either side to have been without competent representation. By extension, you can’t want it to be that the most talented legal thinkers fear being subject to character assassination if they defend ugly clients.

Update: Spencer  points out that Marc Thiessen—to whom the inscrutable whims of Fred Hiatt now require us to pay attention—has been whining that we didn’t see an equivalent backlash against the attacks on the likes of John Yoo and David Addington. Because they’re all, you know, lawyers and… well, that’s about as far as he takes the analogy, but let’s not strain him right out of the gate.

Let’s review, though. The complaint against the current DOJ attorneys is that they took up one side of a vital legal dispute as part of our adversarial process, and made arguments sufficiently compelling that the Supreme Court often agreed. The complaint against John Yoo is that he acted rather like he was an advocate for one side—the “whatever the president wants to do” side—when his actual role was to objectively assess the requirements of the law in secret memos that would effectively determine the limits of policy. His arguments were so far from compelling that they were repudiated in unusually strong terms by his successors in the Bush administration, and career DOJ man David Margolis found it a “close call” whether they were so strained as to constitute professional misconduct. Advocates may sometimes risk trotting out a radical, out-of-the-mainstream legal argument in hopes that it will persuade five justices; Yoo took it upon himself to let such arguments determine policy, growing bolder rather than more humble in the absence of opposition or accountability.

I assume most people intuitively grasp the difference, because I don’t remember seeing anyone level the same kind of criticism against the government attorneys who argued the administration position in the detainee cases. Unlike Yoo and company, they were playing their proper roles in our system of law, not abusing them.

Finally, and perhaps most obviously, the attacks on the current DOJ appointees don’t just question their judgment or aver that they made bad arguments that were ultimately harmful to America. They imply that an attorney who works to defend a set of constitutional principles must be a terrorist sympathizer if those principles are, in the instance, being invoked by someone accused of involvement with terrorism. If someone has been arguing that John Yoo was Salafist mole doing his best to corrupt the American system of law, shame the United States, and murder our soldiers by swelling the ranks of Al Qaeda, then the analogy is more apt—but I missed it.

Speaking at the presidential palace in Kabul, Mr. Karzai showed himself to be at the top of his game. He skillfully co-opted his Pashtun base while making a powerful appeal to the technocrats who have lately been disappointed in him, and at the same time he reassured the Afghan public that his patience with civilian casualties is wearing thin. A palace insider, who asked for anonymity in order to be able to speak candidly, said, ‘If Karzai can continue to signal the West that he is concerned about corruption without alienating his warlord allies, he will likely be able to defuse the perception of a weak leader and regain his image as a unifying figure who can play the role of both modernizer and nationalist.’ Still, the palace insider acknowledged, tensions remain within Mr. Karzai’s own inner circle. At one point during the swearing-in ceremony, observers noted that Mohammad Hanif Atmar, his interior minister, seemed to ignore the greeting of Amrullah Saleh, the intelligence chief. The two have been rumored to be at odds ever since last year’s controversial election. A palace spokesman, speaking on background, denied that the incident had any significance. ‘The sun was in Hanif’s eyes—that’s it,’ the spokesman said.”

“At no time have I ever monitored a student via a laptop webcam,” said Matsko, who is in her 25th year working for Lower Merion School District, “nor have I ever authorized the monitoring of a student via a laptop webcam, either at school or in the home. And I never would.”

Nobody ever claimed that Matsko personally conducted webcam surveillance of students. Nor does the complaint allege that she gave some kind of order to individually target any particular student.  If we believe the district’s claim about how it uses its remote monitoring software—and there’s some reason for doubt—then the laptop camera was probably activated by a tech trying to determine whether the student had taken home a temporary “loaner” laptop that was supposed to remain at school.  The tech may have then seen what looked like drugs on the student’s desk, and forwarded the image to Matsko.  In other words, everything Matsko says here and the allegations made by the student and his family can both be wholly true.

She later added that, in more than a decade as assistant vice principal, she had “never disciplined a student” for actions beyond school property that had no connection to a school-related event, apparently in response to the Robbins lawsuit’s allegation the student learned of the webcam surveillance from a school disciplinary action.

Again, nothing here is actually inconsistent with the complaint.  The claim made there is that the student was called into Matsko’s office and accused of “inappropriate behavior” at home, captured by the school webcam.  There’s no mention of any disciplinary action being taken. The student has since explained that he was questioned about possession of something that appeared to be drugs, but which he says were Mike & Ike candies (of which he is apparently a notoriously ravenous consumer).  Maybe he explained this and they believed him.  Or maybe they didn’t, but decided to drop it since there was no real way to prove otherwise.

Judging by comments on the news story, most locals are interpreting this as a denial of the allegations in the lawsuit.  But closely parsed, it isn’t anything of the sort: It’s a way of slyly implying that the student’s family is lying, without actually saying anything that contradicts their account.

Even this, however, strikes me as the wrong standard—for after all, we all recognize Nina and Glenn as great geniuses of performance who made invaluable individual contributions to culture. But should this be the only model of creativity? Current intellectual property law frowns on “copying” as opposed to mere “influence.” If I write and record a song that is manifestly influenced by the sound of the Beatles, that’s just how culture works; if I remix or reperform a medley of their songs, that’s infringing. One way to think about the distinction is to ask how much mutation of the original work has occurred in my head before I send it out into the world. We can imagine my sitting with a guitar playing “Taxman,” beginning by improvising new lyrics, and gradually altering the melody until I’ve produced a song that is sufficiently transformed to count as an original work, though perhaps still a recognizably Beatlesesque one. I’m free and clear under copyright law just so long as I only record and distribute the final product, which consists of enough of my own contribution that it no longer counts as a “copy.”

Implicit in this model is the premise that creativity is fundamentally an individual enterprise—an act of intelligent design. Yet so much of our culture, historically, has not been produced in this way, but by a collective process of mutation and evolution, by the selection of many small tweaks that (whether by chance or owing to some stroke of insight) improve the work, at least in the eyes of the next person to take it up.  Perhaps ironically, this is the kind of evolutionary process by which myths evolve—myths of life breathed into mud, or of Athena springing full-grown from the head of Zeus. Our legal system now takes these evolved myths as its paradigm of creation.

Consider again the videos I use as case studies in that YouTube. The first cuts up and rearranges fragments of movies by John Hughes into a video for a song by Phoenix. The original or creative act there is just in the selection and arrangement of clips; everything else is “copied.”  The next step is to “copy” the sequence of scenes from the mash-up video with live dancers, still using the Phoenix song. But imagine the original mash-up had never been published, that it’s creator had worked with the Brooklyn kids to create a kind of dance tribute to the movies of John Hughes. Would that seem more original or creative? The audio too can, of course, be remixed and re-remixed.  It is easy to imagine a series of individually trivial transformations by which an original video that is “merely” a rearrangement of someone else’s music and movies becomes a work that—if you did not see the process by which it was produced—would bear no obvious resemblance to anything John Hughes or Phoenix had done.

I do think each of these videos should be considered a real act of creativity and originality, even if not up to the lofty standards of a Bach or even a Glenn Gould. But suppose you don’t see anything deserving the label “creative” here—this still, in an important way, misses the point.  The argument in my initial video was that it misses the point because they have value as a method of social communication quite apart from their contribution to the common stock of cultural innovation. But we can add to this the point that Yochai Benkler is at pains to make in The Wealth of Networks: The Romantic model of creativity as an individual act of genius excludes the form cultural creation has taken throughout most of human history, and the legal regime best suited to promote and incentivize individual acts of creation on the Romantic model may be quite hostile to the aggregative process of creation on an evolutionary or peer-produced model.  The law says, in effect, that we will protect creativity that occurs all at once, in one brain, or at least as the upshot of a planned and organized effort—but at the cost of forbidding the individually derivative elements of distributed and spontaneous creation.

Challenges to our copyright regime under the Free Speech Clause of the First Amendment have thus far proven unsuccessful.  Given how bound up our copyright system appears to be with a kind of divine creation myth writ small, maybe it’s time to try an Establishment Clause challenge instead.

Addendum: David Frum makes the point that Democrats are almost certainly delighted to raise Palin’s profile, for the same reason they treated Rush Limbaugh as the de facto leader of the Republican party a year ago: They’d much rather the face of “the opposition” be someone who’s unpopular with the general public. That’s probably right, but a it’s got to be finessed—stunts like Gibbs’ grocery list are good for a chuckle, but they end up making the administration look petty as well. The trick is to raise your preferred opponent’s status with the GOP base, and only with the GOP base.

On the one hand, maybe for all our folly we’re basically engaged enough—or the people who decide to vote are engaged enough—that we can sift through the media maelstrom and figure out, on average, whose principles, character, and record best represent our community. On the other hand, maybe we’re a bunch of chimps who will vote for the shiny thing.  I incline toward the latter, but I’ve never been all that big on the intrinsic virtues of democracy.  I just have trouble wrapping my head around the view that combines these two beliefs: (1) The wisdom of the people, on the whole, justifies not just the installation of Candidate A over Candidate B, but a whole array of coercive state policies, and also (2) We’re really easily led, and will sell our firstborn to Altria if a slick ad says to. It seems strange for both those things to be true.