TCS Daily

Tapping Our Common Sense

By Michael Rosen - January 6, 2006 12:00 AM

The intense controversy swirling around recent disclosures that President Bush ordered warrantless wiretap surveillance of communications between foreign terrorists and their correspondents in the U.S. has -- as would be expected -- inflamed passions across the political and legal landscape.

In the weeks since the New York Times first revealed the plan in sketchy detail, energized left-liberals have chalked it up to yet another example of the Bush administration's supposedly illicit and dictatorial actions onto the ever-burgeoning pile. Bush supporters have sounded a full-throated, if a bit defensive, justification of the Administration's actions. And legal scholars have wrangled over the meaning of terms like "authorized", "reserved and inherent powers", and "illegal."

Thus, it is with great trepidation that I offer what I hope are some common-sense thoughts on the imbroglio -- not only since it has elicited such intense disagreement but because, for national security reasons, so few details of the program are publicly available. The uncertainty surrounding what exactly has taken place has caused the debate to meander -- sometimes incoherently -- and the debaters to talk past each other.

Based on various reports, though, it seems fair to assume that the National Security Agency engaged in some combination of data mining of communications data (phone numbers, email addresses, etc.) and electronic recording of communicative content (phone calls, emails, etc.). The NSA then likely aggregated and sifted this information -- probably through pattern recognition computer software -- and more carefully scrutinized the resulting nuggets. This "funnel approach" provides the only convincing explanation for why the Administration did not, for the most part, apply retroactively for warrants under the Foreign Intelligence Surveillance Act, since probable cause for the wiretaps became apparent only after the wide net has been cast and the useless information discarded.

And this approach -- combining automated retrieval of data (which is not generally protected by the Fourth Amendment) and content (which is safeguarded by the Constitution) with human evaluation of the winnowed information -- provides critical food for thought for a technological society confronted with balancing our basic freedoms against a foreign assault against them.

It's helpful, first, to unravel the two intertwined threads running through this debate: whether a hypothetical president should enjoy these powers and whether the current administration should.

Put differently, the initial line of inquiry concerns whether we should entrust warrantless wiretap authority to the Executive Branch in general -- even if it housed a president with whose policies and attitudes we violently disagree.

One thing is certain: we have not -- thank God -- endured a terror attack on our soil in more than four years, a success that must be ascribed at least in part to improved intelligence in the wake of 9/11. This intelligence should in turn be attributed at least partially to information gleaned from the NSA's funnel process. We do not and probably never will know exactly how much the wiretaps have contributed. But few of the president's harshest critics dispute that his surveillance has yielded results.

Another thing is also clear: the FISA courts, designed in the 1970's for the Cold War, are far from an ideal vehicle for confronting the terrorist scourge. As the Senate and House intelligence committees' joint report on the September 11 attacks makes clear, the FISA courts raised an impenetrable wall that prevented critical information sharing between law enforcement and intelligence agencies. At the same time, the extent to which the FISA statute infringes on the President's inherent power as Commander-in-Chief to monitor foreign intelligence remains a hotly disputed matter. (The most comprehensive legal analysis of all of these questions, as well as of whether Congress's Authorization of the Use of Military Force in the wake of 9/11, is that of George Washington law professor Orin Kerr.)

Much less clear is how, going forward, we should approach these issues and how wiretap surveillance might both be useful and be subjected to oversight. The majority of Americans appear to understand the importance of computerized communications monitoring to the War on Terror. One recent poll revealed that some 64% of Americans support the government's practice of eavesdropping on telephone calls between U.S. residents and foreign terrorism suspects. Furthermore, data mining -- performed legally by credit card companies and the ACLU alike -- has consistently failed to trouble Americans, doomsayers notwithstanding. I, for one, lose no sleep worrying that my international phone calls are being processed through an NSA server.

But how can the snoops be held accountable? It bears noting, first of all, that the NSA's program has not been the least bit intrusive to the lives of virtually all Americans. That the wiretapping was utterly unknown to the public prior to the Times' disclosure is itself a testament to its non-invasiveness. Like the overwrought criticism of the Patriot Act, the outcry against the surveillance is excessive for the following reason: had any U.S. citizen been genuinely aggrieved by the government's actions, we surely would have heard about it by now. ACLU-championed lawsuits would be proceeding by the truckload. Instead, a handful of convicted terrorists -- hardly the everyday Americans whose freedoms are now somehow at perilous risk -- are considering bringing suit against the president.

But designing adequate safeguards for this presidential power is where the rubber truly hits the road. Arnold Kling and others have made helpful suggestions here and elsewhere. Some kind of oversight -- possibly an independent counsel housed within the executive branch, perhaps a beefed-up, streamlined, and more secretive FISA court, and preferably not a Congressional subcommittee -- would go a long way toward ensuring some amount of honesty and trustworthiness.

Which brings us to the second thread: should the Bush administration be trusted with such powers? Here is where I part ways with a friend and former colleague who told me over the course of a long correspondence that he had little problem with surveillance in the abstract but that he couldn't countenance Bush as the surveiller.

It is this sentiment, more than outrage at the idea of wiretapping itself, that has fed the furor over the NSA program. To Bush's fiercest critics, the latest disclosures are just another chapter in a long book filled with transgressions. Impeachment is being bandied about with some regularity on the left, even more so than in response to the "Bush lied, people died" meme concerning faulty intelligence in the run-up to the Iraq War (incidentally, Norman Podhoretz has refuted this latter charge as completely as possible).

Sadly, there's little that Bush can do to deflate this kind of anger. On the one hand, admitting mistakes in post-war Iraq has helped him recover significantly in the polls. Perhaps if the administration decided to implement some form of independent supervision over the wiretap plan it could take the steam out of the rabid opposition. But given the climate, this is unlikely.

Still, this issue transcends the politics of the moment; it concerns the basic powers of the executive branch. Instead, the administration's opponents should cast aside their bitter feelings -- just as Bush's most fervent supporters might give the rhetoric a rest -- and approach this issue as impartially as possible. We must unemotionally decide what surveillance powers we would feel comfortable entrusting to an administration of the opposite party. Only then can we come together to defend ourselves and our freedoms.

Michael M. Rosen, a TCS contributor, is an attorney in San Diego.


Common Sense should prevail
Perhaps its time for the politicians to listen to the public. I, for one, have no problem with this type of surveillance if it is used to prevent attacks. However, without a prior warrent, the info obtained should not be admissible in court. So, the tradeoff is prevent the attack and forego the prosecution. It boils down to whether you believe the fight against the terrorists is a war, or a law enforcement problem.

I think it is a war...

Privacy should prevail
I do not understand your argument. It is OK to monitor innocent people and thus take away their privacy, but it is not OK use the results to convicts criminals? I would use ANY available information to convict criminals but I would go to great lengths to sa***uard the privacy of the innocent. The phrase “honest people have nothing to hide” is as wrong as any can be. I definitely consider myself honest, and there is a lot of information about me I do not want anybody to know or have access to. Not even some disinterested government official.

Tapping non-Terrorists
Bolton Testimony Revealed Domestic Spying
Jason Leopold, January 2, 2006

...NEWSWEEK revealed earlier this year that the NSA disclosed to senior White House officials and other policymakers at federal agencies the names of as many as 10,000 American citizens the agency obtained while eavesdropping on foreigners. THE AMERICANS WEREN'T INVOLVED IN ANY SORT OF TERRORIST ACTIVITY, nor did they pose any sort of threat to national security, but had simply been named while the NSA was conducting wiretaps.

The "NSA received -- and fulfilled -- between 3,000 and 3,500 requests from other agencies to supply the names of U.S. citizens and officials (and citizens of other countries that help NSA eavesdrop around the world, including Britain, Canada and Australia) that initially were DELETED FROM RAW INTERCEPT REPORTS," Newsweek said in its May 2 issue.

"Sources say the number of names disclosed by NSA to other agencies during this period is more than 10,000. ABOUT ONE THIRD OF SUCH DISCLOSURES WERE MADE TO OFFICIALS AT THE POLICYMAKING LEVEL; most of the rest were disclosed to other intel agencies and, perhaps surprisingly, only a small proportion to law-enforcement agencies."

...During one routine wiretap, the NSA OBTAINED THE NAME OF A STATE DEPARTMENT OFFICIAL whose name had been blacked out when the agency submitted its report to various federal agencies. Bolton's chief of staff, Frederick Fleitz, a former CIA official, revealed during the confirmation hearings that Bolton had requested that the NSA unmask the unidentified official. Fleitz said that when Bolton found out his identity, he congratulated the official, and by doing so he had VIOLATED THE NSA'S RULES BY DISCUSSING CLASSIFIED INFORMATION CONTAINED IN THE WIRETAP...***_eviden.htm

Chicken Little Protests
I can't place my finger where in the Constitution demands that privacy trumps the governments responsibility to defend the people. But as the Left whinning tells us we should respect Bin Laden's right to communicate with Americans who are plotting with him to place a nuclear warhead in a major urban area. Well as long as they place it in Berkeley, Boston, or the Upper East side of Manhattan I could agree with the demands to respect this privacy but unfortunately commonsense demands that the rights of even those among us who prefer to believe that Bin Laden and his ilk are choirboys should be protected from their own folly.

Its interesting to note that Bush's requests have been blocked more often than the total denied prior to his entire administration despite the compelling need for timely action. The government has ruled regualarly and routinely on the president's authority to take those steps to sa***uard the nation despite the misguivings of those that would have us treat people who engage in recreational beheading and the massacre of kindergarden students as micreants of the same stripe as jaywalkers.

Little wonder that the Dhimmiecrats now have to protest that they support the Patriot Act rather than allowing it to die. But the American people aren't fooled. They weren't fooled in 1972 when faced with a decision between electing a questionable candidate and a white flag democrat. Nor will they in 2008. So I feel great encouragement at the antics of the fringe Left as they complete the destruction of the Democratic Party.

Bush's NSA Actions Make a Mockery of Separation of Powers
Bush's NSA Actions Make a Mockery of Separation of Powers
CATO, December 21, 2005

"Perhaps the government is justified in taking measures that in less troubled times could be seen as infringements of individual liberties. But if so, the Congress, not the president, is charged with establishing the rules that apply in exigent cir***stances. The executive branch cannot unilaterally set the rules and enforce the rules, then eliminate court review of possible civil liberties violations."

Seperation of powers
I wonder if R could spell out just where in the constitution it states that acts of congress trump the constitution?

I am exasperated by the fact that most of the arguments, and virtually all of those who argue against the NSA surveillance, treat this as an academic argument. As if there were no real-world results of the surveillance and that there would no consequences if it were stopped.

It is an other-worldly argument in which real people are not seeking to kill us with real bombs. The fact is that we were caught flat footed on 9/11. It’s not that the clues were not there. We knew that there were Middle Eastern men who wanted to learn to fly jetliners, but not how to land. We had suffered an increasing number of terrorist attacks against us over the years. The World Trade center had been bombed before – by Middle Eastern men. We failed to connect the dots. Worse, we had rules in place the made it nearly impossible to connect the dots. Today people are arguing against even collecting the dots, let alone connecting the dots.

A friend of mine, an elderly Jewish man who survived Hitler’s death camps lives in a guarded building in Australia. Mail to his building must be pre-approved or it will not be delivered. When riots broke out on a po****r beach near his home we spoke. He asked me: “Where are my rights? Where are my rights to go to the beach without being assaulted?” This old man’s rights have been trampled on by a society that values the “rights” of hooligans to roam beaches, that values the rights of Imams to inflame hatred of Jews.

Don’t the people of the United States have the right to assume that their government is doing everything it can to insure that they will not be attacked again? Isn’t trying to find out who Osama bin Laden is talking with the least we expect from our intelligence agencies? To hear the Left bellow about the rise of Fascism in the US under Bush is to be reminded that they are abysmally ignorant of real repression and that they are not to be trusted anywhere near the levers of power.

Common Sense
I am not a lawyer. But it appears to me that our international communication network is a public convenience. As a public convenience, should we have any expectation of privacy? If I am on a bus or walking down the street, other people can hear my conversations. If you want communicaiton to be private, it needs to be face to face. Email, voice and faxes all travel on the same system. E-mail is not considered to be private, its like sending a post card in the mail. Anyone along the path of transmission has the opportunity to read it. Why should we treat voice data differently when it is using the same communication network? Maybe someone out there can enlighten me.

Re: 99
There probably will be consequences if general surveilance is stopped. Perhaps even deaths but that is the price.

Incest and murder of children is an even worse act of crime (in my humble oppinion). Where are the government mandated nursery surveilance systems?

Re: common sense
So you also belive it to be fair that the postal service opens, scans, OCR and archives all letters comming througt the postal system, since it is a public convenience?

TCS Daily Archives