The Washington Post must have been feeling left out; today it joined the New York Times in violating the Espionage Act by revealing secrets about the United States’ intelligence-gathering means and methods. Like the Times, the Post relies on anti-administration leakers, who themselves are committing felonies, to publish previously-unreported details of the NSA’s efforts to identify terrorists both abroad and inside the United States.
The program described by the Post sounds like a data-mining effort not unlike the “Echelon” program of the Clinton years. It is unclear whether this is part of, or separate from, the terrorist surveillance program previously disclosed by the Times’ leakers. The Post tries hard to make the program sound both sinister and unsuccessful:
Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.
Well, let’s say it averages five per year; over the four years since September 11, that’s 20 solid leads on terrorists inside the United States. I think virtually anyone would say those are worthwhile results, and any administration that didn’t employ such a program would be seriously remiss.
The Post’s discussion of legal issues surrounding the program is, frankly, ignorant. The paper never refers to the unbroken chain of federal appellate court decisions holding that the President has inherent constitutional power as Commander in Chief to conduct domestic surveillance (let alone international) without a warrant, for foreign intelligence purposes. Absent that recognition, discussion of the legality of the program is meaningless. Here is what the Post does have to say:
The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush’s circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program’s lawfulness under the Fourth Amendment, because a search cannot be judged “reasonable” if it is based on evidence that experience shows to be unreliable. ***
Valuable information remains valuable even if it comes from one in a thousand intercepts. But government officials and lawyers said the ratio of success to failure matters greatly when eavesdropping subjects are Americans or U.S. visitors with constitutional protection. The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be “right for one out of every two guys at least.” Those who devised the surveillance plan, the official said, “knew they could never meet that standard — that’s why they didn’t go through” the court that supervises the Foreign Intelligence Surveillance Act, or FISA.
That last point is right: FISA simply has no application to the kind of data mining operation described by the Post. But the paper’s discussion of the Fourth Amendment is ill-informed. Many, many searches are conducted without warrants, and without probable cause. To take just one familiar example, every time I board an airplane, my luggage is searched. This is done without a warrant, and the government lacks probable cause to believe that I am carrying a weapon. Nevertheless, searching my luggage is constitutional because it satisfies the standard of the Fourth Amendment: it is reasonable. Likewise, the NSA’s data mining program, as described by the Post, is reasonable because 1) catching terrorists operating inside the U.S. is absolutely vital to our security, and 2) the program is likely to turn up significant leads to such terrorists.
If this, or any other, NSA program is reasonable, it is constitutional under the Fourth Amendment; if it is constitutional under the Fourth Amendment, it is within the President’s authority as Commander in Chief to order it without recourse to Congress or the courts.
Actually, screening of passengers and their luggage at airports, which was upheld as reasonable in United States v. Davis, 482 F.2d 893, 905 (9th Cir. 1973), is a good analogy to the kind of computer-driven analysis of electronic communications described by the Post. In Davis, the court said:
The appropriate standards for evaluating the airport search program under the Fourth Amendment are found in a series of Supreme Court cases relating to ‘administrative’ searches.
The court went on to say that the “essence” of these cases is “that searches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of a crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.” The “administrative purpose,” in Davis, was “to prevent the carrying of weapons and explosives aboard aircraft, and thereby to prevent hijackings.” The court concluded, “To pass constitutional muster, an administrative search must meet the Fourth Amendment’s standard of reasonableness.”
Similarly, the interception and computer processing of vast numbers of international communications can be characterized as an “administrative search” which, like airport screening, is directed toward identifying terrorists and thereby preventing terrorist attacks inside the U.S. If TSA employees can look through your underwear without probable cause and without a warrant on the one in a million chance that you might be a terrorist, why can’t electronic equipment intercept and analyze your international phone calls for the same reason?
SCOTT adds: See also A.J. Strata’s “NSA story is a tissue of liberal lies.”
UPDATE: On Fox News Sunday this morning, General Michael Hayden said that the Post got the facts wrong. This is RedState’s summary:
Wallace’s first guest on FNS was General Michael Hayden, the deputy director of National Intelligence. He trashed a Sunday morning WashPost piece asserting that the NSA program has not caught very many suspected terrorists. Hayden argued that the number of FISA applications in not a valid measure. He countered the WashPost assertion that the NSA screens massive lots of electronic communications looking for key words which would prompt direct surveillance. “THIS IS NOT TRUE,” said the general. He said that the program was not “a drift net” covering “Lackawana, Fremont, and Dearborn.”
Analysts have to believe that there is an al Qaeda connection before the communications can be monitored in any way, he said.
Maybe the administration is planting wrong information about the NSA’s surveillance programs in the press to confuse the terrorists. (Just kidding, but at this point it might not be a bad idea.)