At yesterday’s White House press briefing, reporters peppered Tony Snow with questions about al Qaeda’s resurgence. Asked specifically about our vulnerabilities six years ago compared today, Snow said, “There’s no way to quantify, but we are significantly less vulnerable.” Asked how, Snow explained that the U.S. “didn’t have surveillance programs” before 9/11.
Now, on its face, that was a pretty dumb thing to say. I’m not an expert in spy techniques, but I can say with some confidence that there were quite a few “surveillance programs” in place before 2001.
What’s noteworthy now, however, is that there are poised to be more. The newly-declassified NIE (.pdf) noted this week: “The ability to detect broader and more diverse terrorist plotting in this environment will challenge current US defensive efforts and the tools we use to detect and disrupt plots. It will also require greater understanding of how suspect activities at the local level relate to strategic threat information and how best to identify indicators of terrorist activity in the midst of legitimate interactions.”
Slate’s Fred Kaplan translates, and says the part about identifying activities “in the midst of legitimate interactions” is the troubling part.
A year and a half ago, passionate arguments broke out over reports about the National Security Agency’s “data-mining” technologies. A couple of years earlier, the Pentagon attempted to fund a still-more intrusive program called the “Total Information Awareness” network. (The latter effort failed, but the concept was almost certainly re-routed to the NSA or elsewhere.) Concerns were raised about privacy rights, the abuse of power, and the worth of such networks to begin with.
Judging from the NIE (not just from these key passages but from its general assessment of a “persistent and evolving terrorist threat”), the debate over these vast surveillance systems will soon be renewed.
Given the Bush administration’s track record, that’s not necessarily a good thing for those who take privacy rights seriously.
The trick of surveillance programs, of course, is getting the executive branch to follow the law and allow for some checks and balances. A certain occupant of the Oval Office seems to currently be of the opinion that the White House is an accountability-free zone. If the Bush administration seeks additional powers, which now appears likely, especially when it comes to data-mining, that’s a disconcerting thought.
Kaplan added:
I don’t know — and I don’t think anybody else without a specially compartmentalized security clearance knows — whether the NSA or other intelligence agencies are currently following lawful procedures. More to the point, I don’t know whether there are lawful procedures.
When the New York Times revealed in late 2005 that the NSA was data-mining inside U.S. territory, some critics demanded an end to the practice unless it had been approved in advance by the “FISA courts.” These are highly classified panels of judges, set up under the Foreign Intelligence Surveillance Act of 1978, who approve (or decline, though they almost always approve) warrants to place foreign powers or their suspected agents under surveillance.
Bush administration officials responded, at the time, that warrants did not — and could not — apply to data-mining. And they were right. Warrants apply to specific individuals, entities, locations, or phone numbers. It’s not possible to request a warrant to track the calling patterns of an entire country’s population.
What was never settled in that controversy, at least not publicly, was whether FISA warrants apply to any subsequent monitoring that takes place as a result of these vast sweeps. If someone wants to monitor my calls because of the e-mails with my friend in Pakistan, does a FISA court have to give permission first? And are there limits to which of my calls can be monitored, what can and cannot be done with the resulting “intelligence,” or how long it can be stored?
Congress has been reluctant to tackle this. If the administration is poised to seek now power, as it is likely to do, it’s time for lawmakers to start drawing up new safeguards now before Bush’s abuse get worse.