December 21, 2005
Last Friday, the New York Times unleashed a bombshell with a front page story reporting that the Bush administration had repeatedly ordered the National Security Agency to conduct electronic surveillance within the United States without a warrant. Congressmen, including Senate Judiciary Committee Chairman Arlen Specter, immediately called for hearings. Some, including California Senator Barbara Boxer and Georgia Congressman John Lewis, are talking about impeachment.
The legal issues are murky. While the 4th Amendment to the Constitution requires the executive to obtain a warrant to conduct most searches, the courts have generally given the President wide latitude in matters of national security. George Washington University law professor Orin Kerr makes a strong case that the spying did not violate the letter of the 4th Amendment but was likely not permissible under the Foreign Intelligence Surveillance Act (FISA). Former Justice Department lawyer Mark Levin argues that they were legal because “a FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.”
The president’s defenders argue that existing law is simply too cumbersome to combat the terrorist threat. Attorney and conservative commentator John Hinderaker argues:
[T]he issue of speed is critical. When we capture a cell phone or laptop being used by a terrorist, it is usually because we captured or killed the terrorist. The amount of time we have to exploit the capture is very short. The terrorists will soon figure out that their confederate is out of business, and stop using his cell phone numbers and email addresses. So if we are to benefit from the capture, we must begin obtaining information right now. A delay of even a few days may render the information useless, as the terrorists will have realized that their colleague has been neutralized. And it is likely that the first hours or even minutes after we obtain a cell phone number or email address are most apt to yield helpful new information. So it is easy to see why going through the process needed to obtain a warrant from the FISA court would undermine the effectiveness of our anti-terror operations.
This is entirely different from the situation we are all familiar with, where wiretaps are authorized against organized crime figures. Such wiretaps are not executed in connection with an arrest. They often continue for months or even years. There is ordinarily nothing about the context to suggest that the utility of the wiretap will expire in a matter of days, if not hours. Hence the delay required to obtain a warrant is usually immaterial.
National Review’s Byron York goes further, reminding us that “Not long ago, both parties agreed the FISA court was a problem” and reminds us of
. . . the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. Investigators wanted to study the contents of Moussaoui’s laptop computer, but the FBI bureaucracy involved in applying for a FISA warrant was stifling, and there were real questions about whether investigators could meet the FISA court’s probable-cause standard for granting a warrant.
Even changes to the law made after the 9/11 attacks have not fully addressed the situation:
The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. But it did not fix the problem. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained.
Now, of course, this doesn’t explain why the administration didn’t seek warrants after the fact, as they are entitled to do under FISA.
In this space Monday, TCS contributing editor Arnold Kling argued that the potential for abuse of presidential authority created the need for an independent commission to review cases. He posed some interesting questions that are worth answering:
In the future, a President could decide to adapt domestic spying for purposes other than preventing terrorism. Perhaps a future Administration will think that it is just as important to use domestic spying to fight the drug war or to track political opposition. How can we be sure that domestic spying is only being used to prevent terrorism?
The same way we always have. The fact that NSA is being allowed to do surveillance against specific targets doesn’t change anything. Employees at the NSA, the IRS, the Post Office, the telephone company, your credit card companies, and all manner of other places have access to information about you. They abuse their power and violate their trust occasionally but generally don’t because there are screening processes in place to hire honorable people; supervisors and co-workers would report abuses; and there are substantial social and legal penalties for bad conduct.
Are there procedures in place to control and protect the use of data obtained by domestic espionage? How do we know that someone in NSA is not uncovering personal information about his neighbor?
Are we testing to make sure that domestic spying is generating actionable intelligence? Are conversations being interpreted and analyzed in real time, or are the communications intercepts being dumped, unprocessed, into a vault?
The administration and the NSA have asserted, beginning with the New York Times piece that broke the story, that the program has indeed produced actionable intelligence that actually broke up planned attacks. More generally, this program is just like any other intelligence gathering operation or, for that matter, other governmental programs in terms of the likelihood for suboptimal performance. The same procedures—professional management and congressional oversight—are in place to spot problems and attempt to solve them but, alas, perfection will almost certainly not be achieved.
Are the procedures for selecting individuals to be spied upon effective? How are suspects identified? How are they prioritized? How do we know whether we are spying on too many people or too few people?
What are the procedures for taking people on and off the list of those under surveillance? Are the roles and responsibilities for managing this list clearly defined?
A very good question. Presumably, the NSA has every incentive to take people off the list as soon as it is clear they are not gaining enough useful information from them to justify devoting scarce resources to monitoring them.
Some of our questions are simply unanswerable because of our limited knowledge of the program itself, which Attorney General Alberto Gonzales called, “probably the most classified program that exists in the United States government.” As liberal commentator Kevin Drum observes, there’s a lot we simply do not know about the program:
None of [this] makes sense if the NSA program involved nothing more than an expansion of ordinary taps of specific individuals. After all, the FISA court would have approved taps of domestic-to-international calls as quickly and easily as they do with normal domestic wiretaps. What’s more, Congress wouldn’t have had any objection to supporting a routine program expansion; George Bush wouldn’t have explained it with gobbledegook about the difference between monitoring and detecting; Jay Rockefeller wouldn’t have been reminded of TIA; and the Times wouldn’t have had any issues over divulging sensitive technology.
It seems clear that there’s something involved here that goes far beyond ordinary wiretaps, regardless of the technology used. Perhaps some kind of massive data mining, which makes it impossible to get individual warrants? Stay tuned.
While Drum’s speculation about the nature of the program is just that, he’s almost certainly right that there is more going on here than meets the eye. We’ll learn more in the coming days and months, as the press, the Congress, and the courts do their jobs.