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NSA Warrantless Wiretaps: What's the Point?

January 17, 2006

The administration has justified the secret National Security Agency (NSA) warrantless domestic surveillance program by contending that going around the Foreign Intelligence Surveillance Act (FISA) is necessary to conduct the war against terrorism. Attorney General Gonzalez claimed "[t]he operators out at NSA tell me that we don't have the speed and the agility that we need..." The claim seems to be that the Foreign Intelligence Surveillance Court (FISC) is too slow, and the government needs to be able to tap phone calls and email immediately.

But this argument clearly does not hold water. Under FISA, the Attorney General may authorize surveillance without a court order, so long as the government applies for a court order within 72 hours after surveillance begins. Moreover, it would be a far simpler matter (and less legally problematic) to provide additional administrative resources to the FISC if the real problem was merely bureaucratic inefficiency. And, given that only five out of 19 thousand FISC requests were denied, the problem, in the eyes of the administration, was not that FISA was not granting requests under the FISA legal standards.

So what is the real reason to ignore the statutory mandates of FISA? While we wait for Congressional hearings to find out, we offer some speculation:

Ordinarily before the NSA can conduct electronic surveillance against a party who is a U.S. person located within the United States, FISA requires a showing of probable cause to believe the target is an agent of a foreign power. But as described by the White House, the Program allows surveillance where the government can only meet a reasonable basis test. Moreover, the people allowed to make this determination are not judges, but NSA agents and their shift supervisors.

So why was this important? First, as a general matter, the reasonable basis test would allow more surveillance than the probable cause standard. But a further clue can be extracted from the revelations that the NSA has been using secret access to major telecommunications switches inside the US to data-mine Internet logs and phone logs for suspicious patterns, presumably to find new targets for the wiretapping program.

It would be doubtful that any judge would find that suspicious patterns uncovered by a data-mining program, without more, were sufficient to meet the reasonable basis standard, let alone the probable cause standard required by FISA. But the reduced legal standard, coupled with the shift supervisors making the legal determination, ensure that a wiretap can proceed based on the assumptions of a data-mining program, and yet be covered with a thin veneer of authority.

Now the Attorney General could still authorize 72 hours worth of surveillance without a court order under FISA, based upon the data-mining program's suspicions, but would be forced to place these suspicions before a court, and risk the possibility that the FISC would reject the surveillance request and mess up the DOJ's near perfect record. And the FISC might ask about the source of the "reasonable basis," forcing the administration to reveal the data-mining, which is, in and of itself, illegal without a court order.

In its zeal to fight the war against al Qaeda, the government is sacrificing the very liberties it is sworn to protect. Reliance on data-mining computer models to predict suspected terrorists subjects millions of innocent citizens to invasive surveillance with little benefit for the safety or security of the American people. Indeed, the NY Times reported that "virtually all of" the NSA's leads "led to dead ends or innocent Americans," and some FBI officials found the program's results to be nothing more than "pointless intrusions on Americans' privacy." It's not just illegal, but also a poor policy choice that endangers the values on which this Republic was founded.

Read more about the NSA domestic surveillance program.

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