President Obscured the Case for Spying


Feb 5, 2006

This commentary originally appeared in San Francisco Chronicle on February 5, 2006.

Why spy? Or, in this case, why order the National Security Agency to engage in eavesdropping, including listening in on American citizens?

In fact, the case for spying in the immediate aftermath of Sept. 11 was a good one, one that would strike most Americans — including civil libertarians — as fair. Unfortunately, in rushing to make an expansive case for the power of the president, the Bush administration has done neither national security nor itself any good.

It has obscured good arguments for what it did with bad arguments about why it was authorized to do so. In the ensuing debate, the question of whether the NSA programs were sensible responses to an uncertain but potentially grave threat has receded from view.

Sept. 11 shouldn't have come as a surprise, but it did. In the immediate aftermath, all that was known was that terrorists had hit the United States. Whether more attacks were planned was not known. Nor was who had orchestrated the attacks, although al Qaeda was at the top of the list of suspects. In those circumstances, getting any leads on what, or who, might be coming was necessary.

Afghanistan, the known harborer of al Qaeda, was a first place to look. That was a critical start, because given today's technologies, the challenge to the National Security Agency signals-intelligence mission begins with knowing where to look. Fiber optics means that tens of thousands of messages can pass along a single link, and packet switching means that the messages travel separately from information about sender and receiver. So ferreting out messages of interest is an ever more daunting task.

Starting by intercepting messages from Afghanistan to the United States simplified the challenge. In those first dark days, it was one way to look for information about what might be coming.

That was a strong argument for ordering government eavesdropping. Because terrorism seems random, it frightens Americans, perhaps well beyond their real chances of being hit. It is terrifying. As a result, for all the furor over hot buttons like national ID cards, most Americans want to feel safer and think that if they are doing nothing wrong, they have little to fear from databases and other efforts to find terrorists and their networks.

Sure, they recognize that mistakes will happen. But they also have recognized — later, perhaps, than Europeans did — that private financial institutions have vastly more information about them than the government ever could.

I was in the CIA building during the mole-hunt that produced CIA spy Aldrich Ames, and it was striking that his creditors knew so much more about his finances than his employer did.

Unfortunately, if the argument for spying is a good one, that conclusion has been obscured by bad arguments for why the president had the right to order it. On that score, the administration's arguments have been a moving target. It first argued the president had the inherent right as commander in chief, then that the congressional authorization to use force, passed in the days after Sept. 11, covered wiretaps.

Both arguments would have some credibility, except for the history of the Foreign Intelligence Surveillance Act, passed in 1978. In his confirmation hearings, Judge Samuel Alito gave new salience to Supreme Court Justice Robert Jackson's distinction of a half-century ago: The president's power is greatest if his action is consistent with what Congress has done, less if Congress has been silent, and least if the action is contrary to the will of Congress.

In passing the surveillance act, Congress could hardly have been clearer. Not only did it make the methods outlined in the act "the exclusive means by which electronic surveillance … may be conducted" for national security purposes, it explicitly rejected proposed language from the Ford administration that would have left open the possibility a president could continue warrantless taps.

So why didn't the administration use the Foreign Intelligence Surveillance Act process, which provides for a secret court to review and approve FBI and Justice Department requests for national security wiretaps? The administration answer — that the act is too cumbersome — rings hollow in light of changes in the act to which Congress agreed after Sept. 11.

For instance, Congress loosened the standard for wiretaps in terrorism cases, and it extended from one day to three the emergency period during which an administration could start taps before getting retroactive authorization for them. If the National Security Agency had needed still more flexibility, it is hard to believe Congress wouldn't have granted it, especially in those days after Sept. 11.

What was important was to put the national security programs in some legal framework, and the surveillance act provided such a framework. Shunning it was a mistake, and a shame, because it created a needless argument over the past when the discussion ought to be about what our security requires in the future, and how that is balanced with civil liberties. If the Constitution is not a suicide pact, neither is war a blank check.

Gregory F. Treverton is a senior analyst at Rand and associate dean of the Pardee Rand Graduate School. He was vice chairman of the National Intelligence Council in the first Clinton administration, and his "Reshaping National Intelligence for an Age of Information" was published in 2001 by Cambridge University Press.

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