Eavesdropping and Evading the Law

By David Ignatius
Wednesday, December 28, 2005

As we learn more about what was going on under the Bush administration's secret surveillance program, it's clear the National Security Agency has developed some powerful new tools against terrorist adversaries. That's all the more reason these innovative spying methods should be brought within the rule of law -- so that they can be used effectively and legally.

That should be a New Year's resolution for Congress and the administration: Amend our laws on surveillance to establish a framework for using these new techniques of collecting and analyzing information. Because the issues are so sensitive, part of that debate may have to be secret, but that's an inevitable part of legislative oversight of intelligence.

The challenge in the coming debate will be to find the right balance between national security and civil liberties. The loudest arguments will come from those who see the issue in black and white -- who want to tilt in one direction, toward security or liberty. But those won't be the wisest arguments. America is in for a long struggle against terrorism, and it will need sensible rules that embed necessary intelligence activities firmly within the law.

We know only the barest outlines of what the NSA has been doing. The most reliable accounts have appeared in the New York Times, the newspaper that broke the story. Although the headline has been "warrantless wiretapping," the Times accounts suggest the program actually was something closer to a data-mining system that collected and analyzed vast amounts of digitized data in an effort to find patterns that might identify potential terrorists.

Here's what James Risen and Eric Lichtblau said in their original Dec. 16 story, explaining the origins of the program after Sept. 11, 2001: "The CIA seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The NSA surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. In addition to eavesdropping on those numbers and reading e-mail messages to and from the al Qaeda figures, the NSA began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said."

The Times reporters explained details of the program in a Dec. 24 story: "NSA technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects."

The heart of the program may be this effort to find links and patterns. William Arkin explained in a Dec. 23 posting in his washingtonpost.com column, Early Warning, how the data-mining process might work: "Massive amounts of collected data -- actual intercepts of phone calls, e-mails, etc. -- together with 'transaction' data -- travel or credit card records or telephone or Internet service provider logs -- are mixed through a mind-boggling array of government and private sector software programs to look for potential matches."

This is the kind of innovative technology the government should be using, with appropriate safeguards. It employs computer algorithms to discern patterns that would probably be invisible to human analysts. It searches electronically amid the haystack of information for the one dangerous needle. In the phrase that was often used in the scathing Sept. 11 post-mortems, it seeks to "connect the dots."

The legal problems, as Arkin suggests, involve the dots -- what digital information can the government legitimately collect and save for later analysis, and under what legal safeguards? As it trolls the ocean of data, how can the government satisfy legal requirements for warrants that specify at the outset what may only be clear at the end of the search -- namely, specific links to terrorist groups? These and other questions will vex lawyers and politicians in the coming debate, but they aren't a reason for jettisoning these techniques.

America's best intelligence asset is technology. The truth is that America has never been especially good at running spies or plotting covert actions. Our special talent has been the application of technology to complex problems of surveillance. That kept American intelligence in business during the Cold War, and it provides our thin margin of safety against terrorism. It's all the more important now, when al Qaeda's hierarchical structure has been broken and the emerging threat comes from flat, invisible networks of intensely motivated people. How will we see these new terrorists coming?

America needs surveillance and analytical techniques that can connect the dots. But even more, it needs a clear legal framework for this effort. Otherwise it won't be sustainable. In that sense, continuing the current lawless approach would be the true gift to the enemy.


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