Warrantless searches produced few real leads, but does it matter?

The New York Times seems to have the story of the day on this morning’s front page, reporting that the National Security Agency collected a “flood” of tips after the agency boosted domestic surveillance after 9/11, overwhelming the FBI with leads that amounted to practically nothing.

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month. But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

Does the article scream “inter-agency turf war”? You bet. It even includes a quote from an FBI official who says plainly, “This wasn’t our program. It’s not our mess, and we’re not going to clean it up.”

Bureaucratic in-fighting or not, the article did, however, offer some interesting insights. Several FBI officials, for example, complained that the searches “were pointless intrusions on Americans’ privacy.” Moreover, none other than FBI Director Robert Mueller was one of several officials who raised concerns about the legal rationale for warrantless searches, and even asked senior administration officials about “whether the program had a proper legal foundation.” Bush and his political allies may talk about the broad support for the warrantless-search program at the Justice Department, but that apparently didn’t include then-Attorney General John Ashcroft of the director of the FBI.

But in the big picture, all of this may be a tangent. Does the efficacy of warrantless searches matter in the context of the ongoing political and legal debate?

More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive. (emphasis added)

OK, but how many are “few”? If “virtually all” of the leads were dead ends, how many weren’t?

What if this flood of tips from the NSA to the FBI monitored 100,000 people, but produced substantive leads on 10 dangerous terrorists? Or five? Or just one? This will naturally be the administration’s defense. “Our warrantless searches produced voluminous data,” they’ll say, “but fortunately some of it led to key results and helped catch some bad guys. Therefore, the ends justify the means.”

It’s why this article is interesting for offering the FBI’s take, but it’s a bit of a tangent from the controversy surrounding warrantless searches. The NYT piece tells us that the majority of the leads produced by domestic surveillance were unnecessary and ultimately useless, which is interesting but unrelated to the matter at hand — Bush willfully and knowingly circumvented the law.

To be sure, this article suggests that spying without a warrant just doesn’t produce much in the way of life-saving intelligence. In this sense, Bush’s NSA program is not only legally problematic; it’s also largely a waste of precious resources. But let’s not take our eye off the ball.

If .01% of those spied on were genuine threats, the White House still should have sought warrants or asked Congress to change the law to accommodate the initiative Bush wanted. The president decided to do neither. As Michael Kinsley recently put it:

They could have jumped through the required hoops and be wiretapping away about five minutes later. Or if they didn’t like the way some court was interpreting the law, they could have gotten a law tailor-made from Congress just the way they liked…. But that was too much trouble.

At the end of the day, when considering the rule of law, this matters more than whether “virtually all” of the leads were dead ends.

First and foremost, as you point out, even if they wanted to do such wiretapping they should have obtained a warrant, not taken it upon themselves to go around, or above, the law. The rules which govern this society are set by the Constitution and the laws flowing from it, not the whims of Regal Moron.

Even if the illegal wiretapping does yield a terrorist or two, which the FBI wouldn’t have found from other sources – and there’s no evidence of that – we must heed the statement which you quote that this ego-grandizing effort “diverted agents from counterterrorism work they viewed as more productive.”

Who knows more about this? long-term professionals (who incidentally supplied warnings of 9/11 and cautionary info about invading Iraq) or the naive, ignorant Regal Moron who sacrificed an unknown number of lives (American warriors, innocent Iraqis) and US dollars (borrowed from the Chinese, to be paid off by future generations of Americans) so he could appear at staged, closed events as a “war president”, still promising “mission accomplished”?

The Regal Moron has no more respect for intelligence professionals or the Rule of Law than he has for the opinions of scientists over a wide range of federal rulings. He and his manipulators ought to be impeached and imprisoned.

  • It does matter because it shows that breaking the law was not only illegal (duh) but that it also had no actual grounding whatsoever in the supposedly superior necessities of national security. Bush can’t even hide behind his own argument. It was just a capricious exercise in executive overreach for its own sake performed by a petulant jerk.

    It’s a bit like the torture “debate”: not only torture is immoral and illegal, it is also inefficient and counter-productive. Once that is clearly understood, the pro-torture “caucus” is exposed for what is: a bunch of power drunk sickos who get kicks at the idea of waterboarding or of crushing someone’s genitals.

    A debate must always be won on two levels: the principles and the operational. And there, bingo, kaching!

  • Gonzo can spin all he likes. But, he can’t spin past the fact that there are only 2 reasons to avoid getting a FISA warrant:

    The FISA court has been infiltrated by al qaeda.
    No judge would issue one.

    Even though reason 1 is preposterous, both reasons are equally damning for the Regal Moron (Great moniker, Ed – And I hope your health continues to improve)

  • I’m pretty sure the Founding Fathers must have addressed this argument (the idea that it’s okay to apprehend everyone if you can catch just one crook) when they drafted the Constitution and the Bill of Rights. But does anyone know where, in what documents? Somewhere in the Federalist Papers maybe? Historians, anyone?

  • I guess this pretty much shows why they could not make the case to Congress for inclusion into the Patriot act or some other such law, and why they cannot make the case to the american public (say, for an amendment to provide a limited exception to the 4th amendment).

  • We now know that the snoopgate was terribly inefficient. I think an important question to ask is, did the torrent of bad information from the NSA hinder the FBI in its investigation of legitimate terrorist threats?

  • Ed Stephan, I couldn’t have said it better myself.

    Our most dangerous enemy is the current administration. America as we know it (knew it?) will not be safe until we have run them out of office.

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