In Philip Bobbitt's 2008 book Terror and Consent: The Wars for the 21st Century, he argues that data collection is an incredibly useful tool that’s fundamentally misunderstood by the public. Brooke talks with Bobbitt about that and the way the media and public also misunderstand warrants. Bobbitt, law professor at Columbia University is author most recently of The Garments of Court and Palace: Machiavelli and the World That He Made.
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BROOKE GLADSTONE: Philip C. Bobbitt is a former director for intelligence programs at the National Security Council. In his 2008 book, Terror and Consent: The Wars for the 21st Century, he argues that data collection is an incredibly useful tool that's fundamentally misunderstood by the public. Take, for example, the alarm over warrantless wiretapping.
PHILIP BOBBITT: There seems to be an assumption in the public debate that warrantless surveillance is lawless surveillance, that the Fourth Amendment requires warrants before you can intercept a conversation or surveil somebody. Well, the court has held that searches in public schools don’t require warrants. Governments offices can be searched for evidence of misconduct without warrants. Searches can be conducted at the border. Searches can be undertaken as a condition of parole without warrants.
BROOKE GLADSTONE: Many legal scholars have found there is Fourth Amendment support for their position that it's illegal. Many have noted that the President has neatly resolved this issue by simply proposing and passing bills that made legally dubious practices legal.
PHILIP BOBBITT: Well, we have a way of resolving these things. We don’t put it in the hands of the President. As you say, this is an act of Congress, so majorities in both houses thought it was constitution. It will doubtless be challenged in the courts and judges will rule on whether or not they think it’s constitutional. This is a statute and it’s either lawful or it’s not.
BROOKE GLADSTONE: You’ve also said that the need for warrants reflects an outdated criminal justice paradigm for building a case, and that's not what the NSA and the other government surveillance agencies are doing.
PHILIP BOBBITT: That’s exactly right. The warrant requirement is for criminal prosecutions, and that is a law enforcement paradigm that has served us very well. The problem is that if you’re trying to preclude an attack, then you’re not trying to punish someone for something they have done, you’re trying to anticipate an act that has not yet taken place.
Let me get – remind you of this fact: We knew the identity of two terrorists, al-Midhar whose name was on watch lists. We had photographs of him leaving a terrorist meeting in Kuala Lampur and al-Hamsi. If we had simply taken their home addresses, their credit card accounts for the purchase of airline tickets, their frequent flier numbers and their cell phone numbers, we would have picked up all 19 other hijackers and the fact they were all flying within an hour and a half period on September the 11th. Now, it’s not a crime to buy an airline ticket, but we would have prevented that atrocity just by cross-hatching the information we had on these other 17 with the two men we did believe were terrorist.
BROOKE GLADSTONE: Yeah, but those people were already flagged. One of them had left a terrorist meeting. Looking up his associates would seem to make perfect sense, even if the rules then prohibited it. But we’re talking about a massive sweeping of information. I mean, the Wall Street Journal has just reported on another set of rules recently implemented that allows the National Counterterrorism Center to examine the government files of US citizens for possible criminal behavior, even if there's no reason to suspect them. And that's apparently new.
PHILIP BOBBITT: I don’t see what the National Counterterrorism Center would be doing with these, as you say, hundreds of thousands, perhaps millions of data points, if they were not trying to connect it to known terrorist activity. How would they get a start? How would they ever navigate through this incredible maze of information? The only way that that kind of data mining makes sense is if you already have some strong lead.
BROOKE GLADSTONE: A few minutes ago we heard from George Washington University Law Professor Daniel Solove, who’s worried that information that's collected about us for one reason could be applied to some other unrelated purpose, and that we’d never know.
PHILIP BOBBITT: He makes an excellent point. I’d go one step further. I’d say that we ought to be using these very sophisticated techniques of automatic data mining and cross-hatching to protect privacy. The cross-hatching and initial looking for patterns ought to be done by machines, so that no one knows anything about any particular person. The retrieval of that information, with an identity, ought to go before some exterior tribunal to show there really is a hard data point that justifies that.
BROOKE GLADSTONE: You would advocate anonymizing the data until a suspicious pattern emerges and not putting a name to the data until there is some oversight from a different body.
PHILIP BOBBITT: Absolutely.
BROOKE GLADSTONE: He’s also concerned that the government might use criteria to build profiles that we as a people have deemed inappropriate, like say a person's race or religion, and that it could be used to target certain groups.
PHILIP BOBBITT: In light of some of our past abuses of power, that also is not an unrealistic fear. And I think we have to address those fears the way we have in the past, by building in legal processes and now building in technological processes that prevent that.
BROOKE GLADSTONE: I guess it all comes down to trust in government. When this data exists, it can be abused.
PHILIP BOBBITT: Yes, that’s right. Now, the question is do you decide that there’s nothing we can do other than simply not use these data mining techniques? And I think that that’s a very unrealistic and I think not a very helpful way to manage the security of our people.
BROOKE GLADSTONE: So do you believe that it is essential?
PHILIP BOBBITT: I certainly do. Abdulmutallab was the underwear bomber and a subsequent Senate investigation into his plot showed that the National Counterterrorism Center did have hard information about it, that the problem wasn’t a failure to share intelligence among the various entities, but that the National Counterterrorism Center was not organized adequately to fulfill that mission because it did not query other government databases. Remember, this is not information that’s collected by the government without your consent.
BROOKE GLADSTONE: Casino employee lists, the names of Americans hosting foreign exchange students?
PHILIP BOBBITT: Yeah, that’s right. This is information that we have provided the US government. It’s not information they went out and surveilled us to find out. And that is, I believe, the political impetus for this most recent round of trying to integrate government information. Unless you’re prepared to say that data mining is useless in these areas, when it so clearly could have prevented 9/11 with the most rudimentary techniques, then I think you’ve got to move on to those other questions: What can we do to give our people confidence that it’s not being abused?
But what I sense is bewilderment as to why the Congress would pass this statute in the first place. They get a barrage of rather hysterical attacks from our major newspapers and perhaps even programs [LAUGHS] like, like this one.
BROOKE GLADSTONE: Mm-hmm.
PHILIP BOBBITT: Remember, the statute was passed by big majorities in both houses. It was a bipartisan act, and the persons who supported, for example, the FISA reform are some of the most respected people in American life.
BROOKE GLADSTONE: Some say that it's just political death to appear to be pulling your punches on terrorism, that the majority would rather vote for somebody who would stop at nothing to prevent terrorist acts, even if it seemed to roll back assumptions of privacy that Americans have.
PHILIP BOBBITT: Well, if the public wants to be more secure, by changing their expectations of the that is now brought to all of us across these new technologies, that seems to me to be a pretty sophisticated decision.
BROOKE GLADSTONE: Okay. Thank you very much.
PHILIP BOBBITT: Thank you.
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BROOKE GLADSTONE: Philip Bobbitt, law professor at Columbia University, is author, most recently, of, The Garments of Court and Palace: Machiavelli and the World That He Made.