Democratic nominee Katherine Clark and Republican nominee Frank Addivinola spent a substantial portion of their only televised debate sparring over privacy and surveillance. It has been great to see these issues playing such an important role in a Congressional campaign. However, there have been two less good outcomes, independent of who wins. First, it’s still not clear that either the Republican or the Democratic candidate will be skeptical enough about the claims of law enforcement and the intelligence agencies. Second, given that that’s so, it is unfortunate that the debate excluded the voices of the two independent candidates, Jim Aulenti and Jim Hall.
Here’s a transcript of the relevant section of the NECN debate, which is no longer available online. Our comments and fact-checking are in italics, and any significant commitments made by the candidates are in bold.
BRAUDE: Let’s talk about security for a moment. Katherine Clark, we saw that NSA has collected five billion phone records a day, including, quote, “incidentally”, some Americans’ records. So I want to get your first reaction. Privacy was invaded, or that we were safer?
CLARK: I think it’s a very disturbing revelation, as all the NSA revelations have been. If you’re a private citizen, you should not fear being spied on by your government, and I think it is time that we step up Congressional oversight. Of course we want security, and that is a part of what we need to do, but we have to be vigilant about our privacy rights and our Constitution, or we can lose those rights, and it’s time for Congress to have information about the NSA.
BRAUDE: There was a vote on vigilance in the Congress. Every member of the Massachusetts delegation except one [Ed. Joseph P. Kennedy, III] voted for something that would have limited the power of the NSA to collect data only to those people under investigation. Would you have voted for that as a Member of Congress?
CLARK: I would have voted for the Amash Amendment. I would have supported that as a way to say, “Let’s stop and look at what we’re doing…”
CLARK: …That we are having that oversight, and that Congress understands the parameters.
[Clark previously pledged support for the Amash Amendment on the Digital Fourth questionnaire, as did Addivinola, and that is good. It’s clear that she has been following the debate over NSA surveillance with some interest. Her key concern here seems to be that Congress is not being given the information they would need in order to determine whether the extent of NSA surveillance is appropriate. This may incline her toward mild, transparency-oriented reforms. There is, however, nothing here to echo the pledge she made earlier in the campaign of being opposed in principle to mass surveillance programs.]
BRAUDE: One, what was your reaction to the news yesterday, Frank Addivinola, and how would you have voted on this?
ADDIVINOLA: Well, my reaction now is that I’m a little surprised at Senator Clark’s position today, and the reason for that is she cosponsored a bill in the State House in Massachusetts that says that we should expand privacy [sic], and you certainly can check her voting record on that issue. We do need to be very sensitive to privacy in the United States, so therefore I do believe strongly in the Fourth Amendment, and there needs to be probable cause.
BRAUDE: So you would have limited the power of the NSA to only collect information on those people under investigation?
ADDIVINOLA: We need a subpoena and we need to identify those people in advance.
BRAUDE: Do you want to respond to what Mr. Addivinola had to say, Senator?
CLARK: I’m not exactly sure what bill you’re referring to.
BRAUDE: What’s your criticism, Frank?
ADDIVINOLA: I do believe that Attorney-General Martha Coakley had advanced a proposal that we should allow more privacy [sic] – collecting of data, that you cosponsored a bill for that.
BRAUDE: You mean this wiretapping, expanding wiretapping.
[Addivinola’s slip of the tongue confuses here. Clark did cosponsor the wiretapping expansion bill. However, Clark has in fact also cosponsored a bill providing warrant protections for email and personal data, so it’s legitimate for her to be confused here. Addivinola makes a strong statement that we need individualized probable cause in advance before conducting surveillance, which is a much stronger standard than what the surveillance state now employs, and which is the only standard identified in the Fourth Amendment itself.]
CLARK: Sure, I would love to have a chance to address that. The wiretapping bill was a proposal that I cosponsored. The Supreme Judicial Court in Massachusetts [Ed. Actually, a minority opinion of two of the seven Justices…] said that if we’re serious about ending gun violence [Ed. Well, gang violence, but the two do go together to some degree.] we have to take the “organized crime” restriction off the bill. [Ed. That’s true, but the wiretapping bill Clark cosponsored went much further, greatly expanding the crimes for which electronic wiretapping would be permitted, which the minority opinion in question said nothing at all about.] We’re the only state in the country that has that restriction. [Ed. We may be the only state that has that specific language, but it is common to restrict the use of electronic wiretapping to pre-specified crimes or to authorize its use only in certain types of investigations.] I am very much in favor of doing whatever we can to improve gun safety, and that’s why I cosponsored that. But let’s be clear. This wiretapping bill requires a subpoena, judicial review – it’s exactly the process that is set forth in the Constitution, and it’s a rigorous one.
BRAUDE: What’s your problem with it?
ADDIVINOLA: The problem with that is that we need to make sure that the challenges will change. We cannot cherry-pick the issue to allow invasions of privacy for those people who are suspects.
CLARK: I don’t see how it’s an invasion of privacy when you have to have the subpoena. That’s exactly what you just said you wanted.
ADDIVINOLA: That’s right. And let’s take more of a look at the voting record, and the voters can decide.
[The wiretapping bill does not, as far as we can see, violate the Fourth Amendment, and we have made that clear in our advocacy on it. The problem with it is not that it is unconstitutional, but that it allows state authorities to conduct electronic wiretapping in relation to a far greater variety of criminal investigations, down even to such non-violent matters as lying on a firearms license application or possessing marijuana near a school. Addivinola articulates an important point here, and an unexpected one for a Republican to make: that becoming a suspect in a criminal matter doesn’t deprive you of any right to privacy. It can be consitutional, but still highly inappropriate and intrusive, to conduct electronic surveillance on people simply because they might be suspected of any of a large array of minor crimes. The bill therefore potentially brings a far broader swath of Massachusetts residents under the shadow of electronic wiretapping by state law enforcement. In this sense, Clark is taking a formalist approach: that if the appropriate boxes are checked, there’s no violation of privacy.]
BRAUDE: Can we talk about another security issue? You represent Watertown – Watertown is in the district, right?
CLARK: That’s right.
BRAUDE: OK. Watertown, where the younger Tsarnaev was captured. There have been some people in office raising the issue of the number of bullets fired by police; some in the homes in Watertown. Questions were raised by a man who would be a colleague of yours in the Congress, Congressman Keating, about what the FBI did with information on the older Tsarnaev and about his trips and becoming radicalized. He’s asked the FBI to respond, come to his committee; they’ve refused to come, and they wanted him to come to a closed-door session. Do you share any of the concerns of those asking questions that are unanswered about what happened leading up to the Marathon bombings, and in those days after, Frank Addivinola?
ADDIVINOLA: Sure. Law enforcement has to be responsive to voters, and we need to disclose that information was available. Under President Clinton, we had a firewall that was built up between the FBI and the CIA. What we see is that although we have law enforcement agencies that are doing their jobs, they’re not able to communicate and to share that data.
BRAUDE: If the communication were what you think it should be, do you think it’s possible that the Marathon bombings were preventable?
ADDIVINOLA: I think there was enough data there to prevent those bombings.
[Here, Addivinola seems to be locating the problem with the Tsarnaevs in a failure to share data, but the Boston Regional Intelligence Center, set up precisely to share data of this kind, had the information on the Tsarnaevs. The problem is not one of failure to share, but of over-collection. Yes, they received a warning about Tamarlen Tsarnaev – and, probably, about fifty other people in the same week alone. He’s right that the “data” was “there”, but when they are receiving so much data, it becomes impossible to allocate agency resources in a way that will reliably prevent the next act of terrorism, and the probability of missing something important approximates to 1. The three-letter agencies now collect essentially everything; but it’s not humanly or technologically possible for them to properly interpret or weigh what they collect.]
BRAUDE: Now, Senator Clark?
CLARK: You know, I think that that day was such a tragedy for this city, and that our response was…incredible, from our local police through the federal agents. Of course we have a duty to go back and look and review our policies and make sure that we are doing everything we can to protect them.
[Linguistically, “them” in this sentence can only refer either to “local police” and “federal agents”, or to “policies”. The real “duty” is, of course, to the public, and by no means was “everything” done to “protect them”. The police are very lucky that their hail of unreturned fire on Dzokhar Tsarnaev, his boat, and much of the surrounding acre, didn’t kill anybody; and Tsarnaev is exceptionally lucky that it didn’t kill him.]
BRAUDE: Do you feel that the FBI did a decent sharing of information? Again, the older Tsarnaev, and the Russian security service warned the authorities about what they considered to be his increasing radicalism in 2011, and at least Representative Keating is saying that there was not the adequate information-sharing. Do you feel there was?
CLARK: You know, I don’t think I’m in a position to second-guess the FBI. I think that we need to get that information, to make sure we’re making an assessment. I think it’s part of the discussion we’re just having and how we treat security. But I can’t tell you, sitting here today as a candidate, whether the FBI had information that they weren’t sharing and didn’t do a good job with.
[Again, we see that Clark is committed to procedural oversight. For her, getting the information on what the FBI knew is part of Congress doing its due diligence, but, for her as a candidate, it oversteps a line for her to “second-guess the FBI.” Effective oversight of the intelligence agencies, sadly, inevitably involves not taking what they tell you on faith, and doing your best to evaluate the truth of what they tell you. She may well believe in that kind of effective oversight; but if so, it was not coming out in this particular debate.]