Humor me on this.
"Jamie Gorelick" ring any bells? No? I'll explain.
There was an administrative decision on information sharing. The decision was that to maintain the integrity of FBI and DOJ prosecutions they would avoid having their investigations tainted by information which not only would be inadmissible, but would render any information obtained based on the inadmissible evidence also inadmissible.
For an example of how this would work, consider the recent Blackwater case that was thrown out. Once you hear information it's hard to prove that evidence that might have been obtained with that knowledge would certainly have been uncovered had you never heard that information. Yes, life sucks. Such are evidentiary procedures in civilian courts.
So the Gorelick-era decision was reasonable, if you consider the bar to be reasonable suspicion and if you're worried about winning the cases you prosecute. It kept information sharing, though, and was judged one of the contributing factors to 9/11. Information that the FBI got wasn't shared, and when it came to obtaining more information the FBI was concerned with going to the hoops to make sure it would be admissible.
Notice that there's a balance to be struck. Let's say there's a person about to kill 50. You can verify that he's planning to do this using methods that render him unprosecutable and then hope to either incarcerate him in Gitmo or deport him for having an invalid visa. Or you can continue to monitor him by the book, hoping that you get evidence and stop him before he actually kills 50 people. Normally, you want the latter for 98% of the time, but for those last 2%, when you think he's likely to be about to do something nasty, screw rules of evidence. You screw up the case, fine--you've saved 50 people. It's damned tough to find the right balance between preserving an individual's civil rights and saving lives.
When I was in student government I and others agitated to have regular votes in a certain committee. Our votes had been "advisory", imminently ignorable and often ignored. But if we had regular votes we could then provide the margin of victory or defeat for things in our interest. It was pointed out that this made us stakeholders: If we just voted entirely for our narrow interests, we would be violating the terms of having the vote. We'd have to weight the effect of what we were voting on on the entire student body, the university budget, departments and faculty, non-faculty employees. If our votes weren't ultimately important, we could kick and scream to persuade others--and if we were wrong, *they* were responsible. We opted for the vote--who turns down power? And six months later we realized that we'd changed--we were arguing *with* our constituents as much as we were arguing for them, simply because we knew that if we made a decision that helped them the effect on them would be small but it would be crushing for some other group. We couldn't simply agitate.
This is always the dilemma that those out of power, those who are powerless and simple advisors, have. Most of the time the powerless can strike a rather extreme, narrow view, pushing for their interests to the exclusion of all the others competing for attention. It's largely the position Obama took. NPR had a ticklish job today when they were interviewing a security expert: The expert pointed out that Obama's policies look like *'s policies in many respects because *'s policies were reasonable and justified. NPR generally had a "if * did it it's probably wrong" attitude and this was their answer to, "If * did it, it's wrong, is it wrong if Obama does it?"
So that's the preamble. (Sigh.) Obama kept lots of laws and regulations because he thought them reasonable when he was no longer in the opposition but when what he did suddenly mattered on the ground. However, from the differences that were purely administrative and expressed in the Gorelick/* shift we can see that not everything is written. (People have a hard time with this--laws and regs aren't abstractions existing in i-space, they're real and enforced by real people.) You can have lots of laws stipulating that agencies must share information--but if the guy in charge can't be called off the ski slopes to actually look at it because, well, it's just not that urgent; if the information sits there, shared but unexamined because, well, things before were exaggerated; then all the written rules in the world don't matter because the people who implement them don't think they're important. In fact, there may be ancillary administrative-level rules that alter how the law and official regs play out.
In this regard, the RW is having a field day quoting Brennan.
==============================
http://shaneharris.com/news/interview-john-brennan/"To me, I think the government does have the right and the obligation to ensure the security and safety of its citizens. If there is probable cause, reasonable suspicion, about the involvement of a U.S. person in something, the government needs to have the ability to understand what the nature of that involvement is. The threshold for that type of government access can be high or can be low, and it needs to be somewhere in the middle.
"It really gets back to that issue of what is the substantive predicate. … If we know there’s a terrorist overseas that has been involved in activities, but he’s also an import-export dealer, and he reaches out to Shane Harris because you happen to be an importer of stuff — you’re a U.S. citizen — and we can see there’s contact going on there, well, is that sufficient to give us reasonable suspicion that Shane Harris is involved in something? And Shane Harris happens to be in touch with somebody in his neighborhood that has a past record in engagement in some type of things. So there is going to be a judgment call here.
"And what I think is important is that there needs to be an airing of this issue, public hearings that Congress can hold. You can’t explain the issue in such rich detail that you can say exactly where that line is going to be drawn. But there needs to be an articulation of those triggers that the American people overall feel, yes, that’s the right thing for the government to do.
"You don’t want to just troll and with a large net just pull up everything. There are technologies available to pulse the data set and pull back only that which has some type of correlation to your predicate. . . .
It’s like a magnet, set to a certain calibration. That’s what I think we need to go to.
"In the immediate aftermath of 9/11, the threshold, quite frankly, was low, because we didn’t know the nature of the threat we faced here in the U.S. Every effort was made by the government to try to get as much understanding and visibility into what else might be out there that’s going to hurt us again. Now that a number of years have passed, we need to make sure the calibration is important. But maybe in a period of heightened threat you have to recalibrate that based on new information you have — new intelligence that’s going to give you a better sense of where to aim your magnet."
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The conclusion that the RWers are drawing is that the "calibration" was ratcheted down. That things needed to be more salient, more obviously a threat to merit closer attention. That the mechanisms--mostly administrative--that existed under * could easily be altered because they weren't legislation or officially and publicly promulgated rules, and were altered. That people considered things to be much less urgent, if only because, well, we were suddenly the good guys and everybody should recognize that.
Now, we can argue that the RWers are wrong. It doesn't strike me as obvious that they're right. Brennan's comments that I quote are from the campaign, not from when he actually had any power (remember that the powerless can strike poses without penalty that they can't or ultimately regret when they have power). On the other hand, I also lack evidence that they're right. The entire argument's being waged in a vacuum, as far as actual facts are concerned. The problem is that with Nidal and now Abdul Mutallab you can see that there were a lot of facts overlooked, which is possibly consistent with Brennan's seeking less of a low-level threshold, "let's get the evil-doer focus" and more of a middle-level threshold, assuming you accept their definitions.
Writers on the left that I've seen haven't been offering an alternative to the relevant RW definitions as to what a "middle-level threshold" is, as far as I know. Usually most of the things I read from the left strike the pose and attitude of the powerless--they assume that if we do what they say that all will be immediately hunkey-dory, more of the "if * did it, it must be wrong" kind of thinking that NPR was at pains to ignore. Hell, a lot of writers on the left has been taking great pains to refute any hint that perhaps the US had sufficient information to question Abdul Mutallab--which means what Obama and his reports have said has got to really hurt. (They were adamant on a point that I think Obama recognized was politically dangerous but not really convertible.)
Then again, most of the writers don't really accurately portray what the people on the right write and say, except when it's over-the-top and makes for a nice bias-confirming sound bite. I don't know that Brennan offered a definition or explanation in enough detail to rule out their quips and attempt to apply his quotes to understanding current policy, but I think we're going to get a reasoned explanation from the people in charge soon enough.
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