David Ignatius in the WaPo on need for congressional legislation on war on terror

The Washington Post's David Ignatius argues, here, on the experience of the NSA controversy, that whether you think the programs were legal or not (I think they were), we stand in urgent need of legislation to institutionalize the war on terror. I couldn't agree more, and am busy writing this up for Policy Review on the basis of a conference at my law school, a second at AEI in February, and an even earlier one, where I was on the panel next to Mr. Ignatius himself, at the American Society of International Law.

Here's my problem - and it has proven to be a problem in framing my argument for the Policy Review article. I hate writing articles that ardently call for pie in the sky legislation or political action or what have you. I especially hate writing articles that "bravely" call for bi partisan agreement, or national consensus, or what have you, that is only too obviously not going to be forthcoming. I rarely can get myself to read articles in that vein when others write them, because the counter-factual assumptions make the analysis convincing - on, perhaps, the planet Mars.

The Bush administration seems utterly exhausted with this (and pretty much every other) issue. Its current attitude seems to be, "wake me up when we get there." And all this "value" stuff - tradeoffs between security and liberties, how to treat alleged terrorists, all the stuff we went through with the McCain Amendment - appears to be the last thing the administration wants to deal with.

Likwise the House and Senate. I had a fascinating, really compelling conversation with two senior Federalist Society members drafting a white paper on executive power. They both agreed with me that, their expansive views on executive power notwithstanding, they thought it would be a good idea if Congress were to legislate the values and tradeoffs between liberty and security in the war on terror - in the (admittedly blunt and clumsy) context, say, of an appropriations bill in which Congress's authority to legislate was unquestionable. "Let them raise their hands and vote," I was told - and I entirely agree - "let them tell the country in a democratic way what they think the tradeoffs should be. Stand up and be counted." But having said that, my friends added, "of course, there's not a chance in hell Congress would want to do that - it wants to stay off the record, let the Bush administration have to make all the tough calls, and then pout, second guess, snipe, and kibbutz from the sidelines."

Combine that with the fact that Democrats have little reason to act now, before the midterm elections, and those with presidential aspirations have little to gain by committing themselves to anything very specific - specific enough to constitute instructions to intelligence agents, that is - and there is not a lot of momentum there.

And yet, the rancor and anger and sense of bad faith on all sides convinces me more with each passing day that we have to put our priorities in a legislatively enacted framework. It is, after all, a democracy, and at some point our beloved elected representatives have to make clear where they stand. Which is why I will finish the Policy Review piece after all.

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Spy Tools In Need Of a Law

By David Ignatius
Wednesday, May 17, 2006; A23
Washington Post

Let's take a hypothetical problem: An al-Qaeda operative decides to switch cellphones to prevent the National Security Agency from monitoring his calls. How does the NSA identify his new cellphone number? How does it winnow down a haystack with several hundred million pieces of straw so that it can find the deadly needle?

The problem may seem hopelessly complex, but if you use common sense, you can see how the NSA has tried to solve it. Suppose you lost your own cellphone and bought a new one, and people really needed to find out that new number. If they could search all calling records, they would soon find a number with the same pattern of traffic as your old one -- calls to your spouse, your kids, your office, your golf buddies. They wouldn't have to listen to the calls themselves to know it was your phone. Simple pattern analysis would be adequate -- so long as they had access to all the records.

This, in simple terms, is what I suspect the NSA has done in tracking potential sleeper cells in the United States. The agency can sift through the haystack, if (and probably only if) it can search all the phone and e-mail records for links to numbers on a terrorist watch list. The computers do the work: They can examine hundreds of millions of calls to find the few red-hot links -- which can then be investigated under existing legal procedures.

There's one overwhelming problem with this pattern-analysis approach: It may be illegal.
When the Bush administration ordered the NSA after Sept. 11, 2001, to use aggressive techniques to find al-Qaeda operatives, this sort of data mining was one obvious response. President Bush's lawyers argued that he had inherent authority as commander in chief to order such surveillance to protect the country. The NSA accepted the administration's position, but the potential privacy problems worried NSA lawyers enough that they also ordered extensive internal controls, including audit trails, restricted access to databases and other oversight. NSA officials feared there might eventually be a problem, and now there is a big one -- after a USA Today story last week disclosed the program.

Gen. Michael Hayden, who ran the NSA when the program began, will be questioned about it tomorrow when the Senate holds a hearing on his nomination to be CIA director. Hayden may not say much in public, but within the intelligence community he has long been an advocate of data mining and link analysis, calling it "the future of SIGINT," as signals intelligence is known. To explain the basic concept of pattern analysis, Hayden has told audiences that if you could monitor, say, the timing and pattern of calls on Super Bowl Sunday, you would know which teams were playing, how the game progressed and perhaps even who won.

The NSA program poses the most difficult questions about privacy, intelligence and the law. The first essential task is to strip away some of the legal misinformation, starting with constitutional issues. The Supreme Court for decades has accorded a lesser privacy right to calling-record data -- which the NSA likes to call "meta-data" -- than to the underlying content. The court held in a 1979 case, Smith v. Maryland , that "it is too much to believe" that telephone users expect the numbers they dial will be secret, when those numbers appear in bills, phone logs and other business records.

Though Congress in the 1980s legislated greater privacy rights for calling data than the court had found in the Constitution, it narrowed those rights in amendments to the Foreign Intelligence Surveillance Act, which allowed FISA warrants for searching call records if the information was "relevant to an ongoing investigation" of terrorism. Details about the numbers being examined had to be provided only "if known."

The breadth for surveillance power that already exists under FISA has led Rep. Jane Harman (D-Calif.) and others to argue that FISA itself can accommodate the NSA program without further amendments. She introduced legislation last week that would provide additional resources for the administration so that it can comply with FISA. There's also an argument that the administration could submit a general blanket request for data-mining authority, which House Democratic leader Nancy Pelosi described in January as "the mother of all FISAs."

These would be easy fixes, but they would duck the basic issue: Is it legal for the NSA to obtain and keep the nation's phone records to identify who is getting calls from terrorists? Do Americans support that trade-off of privacy for security? It should be obvious now, as the temporary anti-terrorist structure created after Sept. 11 begins to crumble, that the only stable framework going forward will be one that brings these programs clearly and firmly under the rule of law.