Surveillance Showdown

"Privacy" zealots want America to forgo intelligence capabilities during wartime.

By David B. Rivkin JR. and Lee A. Casey
Sunday, September 30, 2007 12:01 a.m.

Would any sane country purposefully limit its ability to spy on enemy communications in time of war? That is the question Congress must answer as it takes up reform of the Foreign Intelligence Surveillance Act. Privacy activists, civil libertarians and congressional Democrats argue that both foreign and domestic eavesdropping must be subject to judicial scrutiny and oversight, even if this means drastically reducing the amount of foreign intelligence information available to the government, without ever acknowledging the costs involved. It is time the American people had an open and honest debate on the relative importance of privacy and security.

FISA, of course, is the law regulating the government's interception of "electronic communications" for foreign intelligence purposes. Earlier this year the special FISA court narrowed dramatically the National Security Agency's ability to collect overseas intelligence under the law, so Congress passed a six-month amendment before its August recess to allow current surveillance programs to continue. That amendment should be made permanent.


When FISA was enacted in 1978, most of this foreign intelligence collection was accomplished by NSA satellites and "listening posts" located outside of the United States. That enabled that agency to acquire, without any judicial involvement, vast quantities of global communications. The fact that foreign targets contacted Americans was of no legal consequence. Even the strongest congressional proponents of FISA's regulation of surveillance activities recognized that intelligence gathering was a key executive function, and the U.S. needed as much foreign intelligence as possible. This bipartisan consensus--that FISA compliance should not impede foreign intelligence collection--was all the more notable coming amidst the congressional reaction to Watergate and at a time when the Cold War threats to national security, while formidable, did not require real-time surveillance of numerous nonstate actors.

Today, primarily because of the communications technology revolution, much of the same foreign intelligence information, focused on non-U.S. persons overseas, passes along U.S.-based fiber optics systems. Unfortunately, much of the Democratic congressional leadership says this new world requires more stringent regulation than in the past because of the risk to the privacy of innocent Americans. But this problem is one inherent in all surveillance schemes whether they're overseen by courts or not.

All suspects, whether garden-variety criminals or terrorists, whether surveilled with or without a warrant, invariably contact numerous innocents. Requiring the government to obtain a judicial order for all overseas surveillance whenever an American's communications might be intercepted will not solve this problem.

The government does utilize a series of "minimization" procedures governing how foreign intelligence information is handled to prevent its inappropriate use or disclosure. As explained by CIA Director Michael Hayden in 2006, referring to the post-Sept. 11 terrorist surveillance program before it was subjected to FISA: "if the U.S. person information isn't relevant [without foreign intelligence value], the data is suppressed." The fact that senior U.S. government officials (unlike their counterparts in other countries) do not routinely have access to the unredacted surveillance-generated information about American citizens, and that the system is operated largely by career civil servants, provides an additional layer of privacy protection.

Warrantless surveillance is also constitutional. The Fourth Amendment prohibits only "unreasonable" searches and seizures. Although today's privacy advocates routinely claim that warrantless searches are inherently unreasonable, that position is insupportable. The Supreme Court has repeatedly approved numerous warrantless searches, balancing the government's interests against the relevant privacy expectations. Thus drivers can be subjected to sobriety checkpoints and international travelers are liable to search at the border.

The key in such cases has generally been the presence or absence of a "reasonable expectation of privacy." If there is no reasonable expectation of privacy associated with a particular location or activity, then a warrantless search is not unreasonable. Whether Americans have a reasonable expectation that their international communications--which may be routed through any number of foreign countries and are routinely subject to capture by foreign intelligence services--will not be incidentally intercepted by the U.S. government is debatable. But foreign nationals communicating abroad have no reasonable expectation of privacy vis-à-vis the NSA simply because their conversations are electronically transmitted through American switching stations.


On the other side of the scale, of course, is the government's obligation to protect the American people. Because the U.S. faces a dispersed, shadowy, and ideologically committed enemy--in circumstances where defectors are rare and the CIA's ability to penetrate the hostile networks is extremely limited--the most proactive electronic surveillance operations are essential. Requiring judicial orders for the collection of foreign intelligence anytime an innocent American's communications may also be intercepted would cripple U.S. intelligence gathering. Obtaining orders against many foreign targets about which comparatively little may be known, including their true identities or the precise modalities of their involvement with jihadist entities, would be impossible.

The privacy advocates claim that surveilling without traditional warrants, albeit still with substantial judicial involvement, "purely" foreign-to-foreign communications is enough. But many of the NSA's most valuable overseas targets routinely contact Americans. Moreover, if the Democratic-leadership authored FISA reform--which requires judicial involvement once a foreign surveillance target reaches a certain number of communications with the U.S.--were to pass, every foreign terrorist and spymaster would communicate with the U.S. enough to be enrolled in the warrant-driven surveillance program. As a result, the only people overseas who could still be surveilled warrantlessly would be the ones with the least intelligence value.

The privacy advocates also criticize the NSA's efforts to collect vast quantities of information, claiming that more targeted, individual-specific surveillance is both more privacy-friendly and better protects America's safety. However, unlike the Cold War-era--when the NSA was focused largely on a few state entities, and had a pretty good idea of who the targets were--today targeted surveillance alone is not enough. Thousands of individuals participate in various ways in jihadist activities, and even more individuals possess valuable information about them. All of them seek to blend into society, benefiting from the anonymity of modern life and ease of travel and communications. Because their behavior differs in subtle ways from the conduct of law-abiding citizens around them, NSA-led broad surveillance, backed up by various pattern-recognition programs, can identify the right targets.

Indeed, privacy advocates seek to ban the NSA's overseas-focused broad surveillance programs--and require warrants whenever overseas targets have a number of contacts with the U.S.--precisely to decrease dramatically the total number of foreigners tracked by the NSA. Their logic is unimpeachable--the fewer foreign targets are reached by the NSA, the fewer innocent Americans would be caught up in the surveillance net. But this fervent commitment to protecting the privacy of Americans from all intrusions comes at a very high cost; for the first time in history, the U.S. is asked to collect less intelligence about the enemy while prosecuting a war.

Those who want to subject all government surveillance activities to a warrant requirement should honestly acknowledge that this approach would dramatically shrink the stream of foreign intelligence available.

Let's be clear here: Privacy is an important value. American society cannot afford, however, to elevate privacy concerns beyond all other considerations. Being suspicious about governmental power is consistent with our constitutional values--the Framers certainly were so inclined--but being paranoid about one's own government is not.