Using All the Tools
Imagine a top-level meeting in the White House on the day after 9/11. Everyone sitting around the cabinet table is haunted by the fear that other terrorists in sleeper cells are poised to strike, perhaps with weapons of mass destruction that would dwarf the devastation of 9/11. How, everybody asks, can we root these Islamic terrorists out when there is virtually no reliable intelligence about them or their plan of attack? The answer is that we might be able to do it through our one best defense--U.S. technology, in particular, the spy satellites and supercomputers of the National Security Agency.
Would you vote for this option? Some history helps put the question into perspective.
The world has changed dramatically since the days when espionage was conducted through dead-letter boxes and bugs on phones that plugged into walls. The legal basis for U.S. surveillance was born of that bygone era. Congress passed the Foreign Intelligence Surveillance Act in 1978, allowing the NSA to listen to suspect calls abroad without a court warrant but requiring court approval when one party to a call is in the United States and there is sufficient evidence--probable cause--to show that the person is an agent of a hostile government or a terrorist organization.
Technology has changed the old parameters. The NSA today can conduct data mining, for one thing--that's detailed searching for patterns and connections through billions of telephone calls and E-mails. The agency is uniquely positioned because the world of broadband communications basically now passes at some point through the switches of American communications' companies. Data mining essentially makes the antique technology framework created by the FISA obsolete. Under FISA rules, the NSA must get a warrant for each suspect phone number and each data point. The FISA procedures are obviously hopelessly inadequate in a world where al Qaeda terrorists flit from place to place, phone to phone, E-mail address to E-mail address.
Missed clue. In 1999, the NSA latched on to the phone number of a "Khalid," living in San Diego. He turned out to be Khalid Almihdar, one of the hijackers who flew Flight 77 into the Pentagon. Because Almihdar was not known to be a terrorist, however, NSA officials, worried about being accused of domestic spying, did not intercept his calls and so missed a clue that might have saved 3,000 lives. No wonder President Bush decided to seize upon the broad war-making powers conferred on him both by Article 2 of the Constitution and by the congressional post-9/11 resolution authorizing him to employ all necessary and appropriate force in the war against terrorism.
The NSA intercepts have proved invaluable. The NSA's former head, Gen. Michael Hayden, says they have helped to prevent attacks, including one intended to blow up the Brooklyn Bridge in 2003. The top Democrat on the House Intelligence Committee, Rep. Jane Harman, has affirmed this judgment.
Critics, in both the Democratic and Republican parties, charge that such NSA operations are illegal without warrants. Such arguments miss the point. What is relevant is how to develop a system that empowers government to monitor potential threats in the most agile, timely way possible while reassuring the public that it is not abusing its powers.
How? Unelected judges are not the answer. Warrants that aren't required for listening to terrorist communications in Iraq or Afghanistan should not be needed to listen to a terrorist abroad calling a potential plotter inside the United States.
As I argued last week, there are issues that should have bipartisan support, and this is one of them. To this end, the president must delegate someone trusted by Congress to come up with a sustainable bipartisan solution exempting data mining from the constraints of FISA while providing for appropriate congressional oversight. This will require good-faith negotiations between the White House and Congress. Staff members from the congressional intelligence committees, with the benefit of joint legal counsel, could be assigned to the NSA, fully briefed on all its operations so they can report back to the committee members. We must act at once, for the revelations about the NSA program have already alerted the terrorists to change their ways.
Another element to ensure public confidence commends itself. This is Judge Richard Posner's suggestion that information obtained through this intercept process should never be allowed in court but should be used only for counterterrorism intelligence. Our leaders must prevent issues of national security and civil liberties from becoming excessively politicized or legalized. Abraham Lincoln understood this. "Must a government, of necessity, be too strong for the liberties of its own people," he asked, "or too weak to maintain its own existence?" We must find the right balance in the war against terrorism, whose proponents' only goal is to destroy America.
This story appears in the February 27, 2006 print edition of U.S. News & World Report.