Civil Liberties

The Grounds of Silence

Does secret surveillance require secret policy making?

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In a recent New York Times/CBS News poll, 68 percent of respondents were willing to let the government "monitor the telephone calls and e-mails of Americans that the government is suspicious of" to "reduce the threat of terrorism." By contrast, 70 percent were not willing, in the name of fighting terrorism, to let the government "monitor the telephone calls and e-mail of ordinary Americans on a regular basis."

But what if some "Americans that the government is suspicious of" are "ordinary Americans," selected for surveillance even though they have nothing to do with terrorism? To reduce the likelihood of such mistakes, the Foreign Intelligence Surveillance Act (FISA) requires court approval for domestic wiretaps of suspected terrorists—a requirement the Bush administration considers too cumbersome to obey, at least when dealing with communications that cross the U.S. border.

As the Senate Judiciary Committee prepares to hold hearings on the National Security Agency's warrantless surveillance of American citizens and residents, the question is not simply whether the administration is right that FISA's restrictions are inappropriate for wiretaps intended to "detect and prevent" terrorist attacks. The question is also how the issue should be resolved: by Congress after a public debate, or secretly and unilaterally by a president who says public debate is dangerous because "the enemy listens."

The administration's main objection to FISA seems to be that its standard for approving wiretaps is too hard to meet in fast-moving investigations aimed at heading off terrorist attacks, despite its provision for retroactive approval of surveillance within 72 hours. Under FISA, the government must show "probable cause" to believe a target is an agent of a terrorist organization.

Under the NSA's program of warrantless wiretaps, by contrast, the government need only have what Attorney General Alberto Gonzales calls "a reasonable basis to conclude that one party to the communication is a member of Al Qaeda, affiliated with Al Qaeda, or a member of an organization affiliated with Al Qaeda, or working in support of Al Qaeda." This approach not only requires less evidence; it also applies to individuals whose connections to terrorism may be indirect and tenuous, thereby increasing the chance of mistakenly monitoring innocent people.

Because there is no review by anyone outside the executive branch, we have to take the Bush administration's word that even this relatively weak standard has been carefully and consistently applied. But it's hard to trust officials who have been quietly ignoring FISA's requirements for the last four years and even now say they're reluctant to discuss the issue because of national security concerns.

Gen. Michael Hayden, who was the NSA's director when President Bush authorized the warrantless wiretaps and is now the principal deputy director of national intelligence, insists the agency's surveillance within the U.S. is not a "drift net…grabbing conversations that we then sort out by these alleged keyword searches or data mining tools." Since Hayden repeatedly has expressed the fear that Al Qaeda is listening to everything he and other officials say on this subject and may be learning things that will help it evade detection, I'm not sure I believe him.

And what should we make of the fact that in 2002 the Bush administration declined to support legislation that would have changed the FISA standard for surveillance of non-U.S. persons from "probable cause" to "reasonable suspicion"? James A. Baker, the Justice Department's counsel for intelligence policy, told the Senate Intelligence Committee such a shift—which President Bush already had authorized for a broader class of targets all on his own—might be unnecessary and unconstitutional. Was that stance deliberate disinformation intended to trick Al Qaeda?

Legitimate concerns about revealing intelligence methods should not become an excuse for misleading the public or for cutting Congress and the courts out of momentous decisions about how to balance security against terrorists with security against an unaccountable executive branch.

Jacob Sullum is a senior editor at Reason and the author of Saying Yes: In Defense of Drug Use. Sullum's weekly column is distributed by Creators Syndicate. If you'd like to see it in your local newspaper, please e-mail or call the editorial page editor today.

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