Let's Use All the Tools
Here is a scenario that could be right out of a spy movie or the TV hit 24: A foreign intelligence service tells the CIA it has discovered that one of its nationals who is an active terrorist has made calls home from within the United States. The foreign spy service gives the CIA the man's aliases and the number he called from. Our counterterrorist agents leap into action. They ask the National Security Agency to check all the phone numbers the terrorist called in the United States or elsewhere to unmask a possible sleeper cell of other terrorists.
The NSA, using its vast computer power to scan millions of "call detail" records, begins urgently examining the pattern of calls when a garbled story appears in the press that the agency is eavesdropping on the conversations of innocent Americans. A U.S. president, recently elected and unsure of himself, orders the NSA to stand down. Four weeks later, the sleeper cell explodes a bomb in a tunnel of a major American city.
Far-fetched? Not really, when you consider the media storm about NSA's "listening in" on calls placed to the United States from suspected al Qaeda members or affiliates. Except that that's not what the NSA does. It doesn't listen in on all these millions of conversations. The agency's analysts look for patterns in the timing and frequency of numbers called. This is what it was charged with doing by President Bush after 9/11. It was and is a sensible use of our comparative advantage in technology. It enables us to collect information that human intelligence has been unable to provide, given our difficulty of penetrating cells of radical Islamists, at home or abroad. The program was an essential response to the pre-9/11 failure to "connect the dots." Why? Because before you can connect the dots, you've got to be able to see them.
Uproar. Much of the rhetoric of the press now essentially charges the White House with illegally trampling on our constitutional rights and creating an ominous surveillance state. The fact is that the NSA has not been "snooping" on the conversations of Americans. Moreover, what it has been doing is presumptively legal, given the Communications Assistance to Law Enforcement Act, or CALEA, of 1994. That law made it clear that a telecommunications carrier had a duty to cooperate in the interception of communications for law enforcement purposes. The law reads, "Interception of communications or access to call-identifying information ... can be activated only in accordance with a court order or other lawful authorization." In other words, a court order is not the only form of lawful authorization. A subpoena or "national security" letter from the FBI may also compel a telephone company to hand over these records without court approval. This action is consistent with telephone and Internet business contracts, which include provisions authorizing the company to disclose records, if necessary, to protect public safety and national security or to comply with a lawful government request.
The case for the NSA's data mining is even stronger than it was in 1994, before the 9/11 attacks. It was hardly controversial when it was passed and signed into law by a Congress and White House controlled by Democrats. Given that the leaders in both chambers and members of the newly created intelligence subcommittees were briefed on the matter, and given that the U.S. Supreme Court had already distinguished between collecting routing information and phone numbers as acceptable and separate from obtaining the actual content of phone calls, why the uproar? Is it because the Republicans now control the White House and Congress?
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