Saturday, May 13, 2006

Domestic Spying and the NSA

By Melissa Boyle Mahle

In the New York Times this Sunday, 14 May, I will have an op-ed on the nomination of Gen. Michael Hayden as the new head of the CIA. I am certain that I will get some negative feedback related to emerging press stories about the NSA and domestic spying. I stand by my assessment in the op-ed even more because this latest story of NSA out of the box thinking tells me that Hayden is creative, recognizes a good idea when he sees one and will bring fresh air to the CIA.

First of all, I think the NSA program to collect domestic telephone records to be exactly the kind of program that we need to have in the global war on terror. People forget very quickly it seems that on 9/11 we found ourselves blind domestically. We had no idea what terrorists might be doing inside the USA. Worse yet, we had a ton of intelligence indicating contact between known terrorists overseas and individuals in the USA.

There are several aspects of the operation that legitimately should be questioned because it is essentially a large fishing operation. Intel agencies are free to fish overseas, but domestically it runs counter to our ethos and sometimes our laws. Are civil liberties sufficiently protected? Is it legal? Has Congress been briefed? Is the gain worth the risk?

In order to answer these questions, you need to understand how the program works. Richard Falkenrath’s op-ed in the Washington Post today provides a good description.

The Right Call on Phone Records
The NSA's Program Safeguards Security -- and Civil Liberties
By Richard A. Falkenrath
Washington Post
Saturday, May 13, 2006; A17

On Thursday, USA Today reported that three U.S. telecommunications companies have been voluntarily providing the National Security Agency with anonymized domestic telephone records -- that is, records stripped of individually identifiable data, such as names and place of residence. If true, the architect of this program deserves our thanks and probably a medal. That architect was presumably Gen. Michael Hayden, former director of the NSA and President Bush's nominee to become director of the Central Intelligence Agency.

The potential value of such anonymized domestic telephone records is best understood through a hypothetical example. Suppose a telephone associated with Mohamed Atta had called a domestic telephone number A. And then suppose that A had called domestic telephone number B. And then suppose that B had called C. And then suppose that domestic telephone number C had called a telephone number associated with Khalid Sheik Mohammed, the mastermind of the Sept. 11, 2001, attacks. The most effective way to recognize such patterns is the computerized analysis of billions of phone records. The large-scale analysis of anonymized data can pinpoint individuals -- at home or abroad -- who warrant more intrusive investigative or intelligence techniques, subject to all safeguards normally associated with those techniques.

Clearly, there is a compelling national interest in understanding and penetrating such terrorist networks. If the people associated with domestic telephone numbers A, B and C are inside the United States and had facilitated the Sept. 11 attacks, perhaps they are facilitating a terrorist plot now. The American people rightly expect their government to detect and prevent such plots…

Protection of Civil Liberties?

Nobody wants to have their telephone conversations taped and held for posterity in some USG vault. This program does not do that. It is simply a data base of tolling records stripped of every thing but telephone calls made and received, date and time. This is a very efficient design and gives utmost protection to personal privacy. Polling indicates most Americans feel sufficiently protected with the controls set up in the system as described publicly. But oversight of the program by Congress is critical to ensure abuses do not occur.

Is it Legal?

I am no lawyer and others must weigh in on this. But is seems to me that the Patriot Act covers this type of collection. Coming on the heels of the warrantless wiretap controversy, I think that we should run this question to ground. If it is not legal, then Congress needs to create legislation to address it.

Has Congress Been Briefed?

Our representatives are being a bit coy on this. It is a secret program. It is difficult to confirm that there have been briefings without confirming that there is a secret program. Reading the tea leaves, however, it sounds like it was briefed to the oversight committees, not just the Gang of Eight. Oversight should address issues of legality and appropriateness. Oversight should also address controls. What happens to the data? Is it stored indefinitely? Who has access to it and under what circumstances? Can law enforcement use the data base for criminal investigations unrelated to terrorism?

Is the Gain worth the Risks?

As a fishing operation, there must be a net assessment at some point that the operation is worth continuing. Collecting data for years that never or only seldom produces a significant intelligence lead is a poor use of resources. NSA will have to make the assessment, but Congress must be diligent in demanding to see periodic reviews. From my past experience, I know that terrorist toll data information is very useful in connecting cells and figuring out the command and control structure. Having a data base that goes back years gives you confidence that you are seeing a large piece of the fabric. But at the end of the day, the data base must demonstrate its usefulness or you make the mental note that it is not worth the time to check it every time you get a phone number.

And Leaks

Why are we even talking about this? This is a secret program. I don’t think terrorists are stupid and they know that we are monitoring the phones and the internet in the US and around the world. However, I know terrorists can get lazy, use bad tradecraft and leave footprints behind. Telephone calls are footprints. Not only what is said in them, but the very fact that they took place. Why do we have to remind the bad guys that we are looking for these particular kinds of footprints?

Once again, all leaks are bad.


Blogger anwaya said...

I don't buy your PATRIOT Act argument, sorry. I don't believe that it overturns the need for a trap-and-trace warrant for the kind of information the NSA was (and is) collecting, and it also doesn't trump the provisions of FISA: in both cases, it's the lack of oversight that is problematic.

Now that the Hamden decision specifically eliminates the Article II+AUMF argument, what is left to make these programs legal? Why should Hayden be trusted with any aspect of National Security?

7/09/2006 4:00 PM  

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