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.