Surveillance: strategy and law

"We exist in a political culture that distrusts two things most of all: power and secrecy. "
"This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda."
Gen. Michael Hayden, Jan. 23, 2006

"Sire, it was worse than a crime. It was a mistake."
Talleyrand to Napoleon

Power and secrecy must characterise intelligence agencies, in order for them to be effective. The more of each, the better. This, of course, is provided such power is used only as it ought. Secrecy necessarily prohibits public accountability providing a check on intelligence agencies. Instead preventing misuse of power is carried out by government oversight. The degree and process of oversight must be a function of the nature (and development) of the threats on which intelligence is sought. The key question in the U.S. debate over president Bush's avoidance of the requirements of the surveillance statute is whether the statute is relevant for its purpose in the context of the new war. This has been lost in the partisan exchanges.

The facts are straightforward. In 2001, after the attacks on New York and Washingon D.C., Bush secretly authorised the NSA to monitor and target communications between suspected al-Qaeda agents and others when one party to the communication was in the U.S. and the other abroad. This avoided the administrative and judicial review requirements in the Foreign Intelligence Surveillance Act. The statute requires that a secret federal court grant a warrant if "probable cause" is shown that a person to be monitored is foreign agent or a criminal. The effect of the president's actions was to - secretly and unilaterally - lower the threshold for monitoring conversations of persons suspected of plotting terrorist attacks. It is an important early-warning against al-Qaeda, but it is in breach of the FISA. The administration claims this breach is valid because of the inherent constitutional power to defend the nation. Such claims are legally dubious. The authorization was, however, reviewed by lawyers at the NSA, the Department of Justice and the White House and was approved by the attorney general. It was also made known to the congressional leadership.

Some recent commentary has put the issue in perspective. In the speech from which I take the quote at the beginning of this post, Gen. Michael Hayden, America's deputy director of national intelligence (and previously director of the national security agency (NSA) - the agency at the centre of the phonetapping debate) discussed the NSA's work:

"NSA intercepts communications, and it does so for only one purpose -- to protect the lives, the liberties and the well-being of the citizens of the United States from those who would do us harm. By the late 1990s, that job was becoming increasingly more difficult. The explosion of modern communications in terms of volume, variety, velocity threatened to overwhelm us."
...
"Gone were the days when signals of interest -- that's what NSA calls the things they want to copy -- gone were the days when signals of interest went along some dedicated microwave link between strategic rocket forces headquarters in Moscow and some ICBM in western Siberia. By the late '90s, what NSA calls targeted communications -- things like al Qaeda communications -- coexisted out there in a great global web with your phone calls and my e-mails. NSA needed the power to pick out the one, and the discipline to leave the others alone."
...
"You know, the 9/11 commission criticized our ability to link things happening in the United States with things that were happening elsewhere. In that light, there are no communications more important to the safety of this country than those affiliated with al Qaeda with one end in the United States. The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve al Qaeda or one of its affiliates.

The purpose of all this is not to collect reams of intelligence, but to detect and prevent attacks. The intelligence community has neither the time, the resources nor the legal authority to read communications that aren't likely to protect us, and NSA has no interest in doing so. These are communications that we have reason to believe are al Qaeda communications, a judgment made by American intelligence professionals, not folks like me or political appointees, a judgment made by the American intelligence professionals most trained to understand al Qaeda tactics,
al Qaeda communications and al Qaeda aims.

Their work is actively overseen by the most intense oversight regime in the history of the National Security Agency. The agency's conduct of this program is thoroughly reviewed by the NSA's general counsel and inspector general. The program has also been reviewed by the Department of Justice for compliance with the president's authorization. Oversight also includes an aggressive training program to ensure that all activities are consistent with the letter and the intent of the authorization and with the preservation of civil liberties."
...
"Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such."

Hayden's speech provides an insight into the constraints and challenges currently facing intelligence agencies. By quoting his view that he believes the secret unilateral avoidance of the fISA would have led to the 9/11 conspiracy being uncovered and his view that the oversight regime was rigorous, I do not seek to defend the fact that the president has omitted to bring the matter before congress so that the statute could be amended. I merely hope to illustrate the necessity of such amendment. Strategic realities dictate it. That is not to say that the president's failure to have the law updated was wise. Law and strategy must march hand in hand. Otherwise the system of public consent is undermined as is public trust in the sensitive and crucial work being done by the NSA and other such agencies. Bush's was right to identify that the FISA had become defective, wrong to act as though it could remain disregarded indefinitely.

Philip Bobbitt, historian, law professor, author and former director of strategic planning at the National Security Council, recently summed up the issue as follows:

"If we agree that the National Security Agency now needs to trace and analyze large volumes of phone and Internet traffic looking for particular patterns and to cross-reference leads, then it seems clear that traditional, specific warrants may sometimes not be appropriate. Furthermore, not only are there presumably conspirators within the United States, but conversations between two foreign persons could be routed, via the Internet, through American switches to give the appearance of a domestic-to-international connection. It is difficult to imagine getting warrants now in such situations, because the standard of probable cause to conclude that the target is a terrorist cannot be met. "

But he says, importantly, that:

"This is not to play down the damage done to our war aims by the executive branch's repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting. Having said that, we also must not be so absorbed by questions of statutory
construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function."