Spying Within the Law
The Bush administration is at a legal crossroads on surveillance: Will it seek to embed the National Security Agency's hunt for potential terrorists more firmly within the law? Or will the White House continue to tough it out -- and try to maintain the NSA program under an expansive theory of presidential power that many experts reject?
A month ago, when the story of the NSA's warrantless wiretapping broke, the White House seemed determined to maintain a defiant course. But thanks in part to a quiet revolt among administration lawyers and intelligence officers -- who believe that the surveillance program can't be sustained without a stronger legal and political base -- that unyielding stance may be easing.
President Bush said Wednesday, for example, that he would welcome a congressional investigation of his authority to order the NSA program, saying it would be "good for democracy." That was a sharp change in tone from the initial White House response, which was to demand an investigation into who had leaked the story to the New York Times.
The legal challenge will be to amend the 1978 Foreign Intelligence Surveillance Act, which created a special court to approve surveillance requests -- or to obtain a court ruling that FISA, as written, covers the NSA program. A sign that the administration may be seeking this sort of clearer legal mandate came Monday when Gen. Michael V. Hayden spent several hours briefing the FISA court on the program, according to a report that night on Fox News. Hayden, deputy director of national intelligence, who was running NSA when the warrantless surveillance began after Sept. 11, 2001, was accompanied by his successor at the NSA, Lt. Gen. Keith Alexander.
Lawyers and intelligence officers who knew of the super-secret NSA program suspected that its frail legal rationale would eventually collapse despite the administration's contention that it was sanctioned by the 2001 law authorizing the use of military force in Afghanistan. Indeed, Attorney General Alberto Gonzales said in a Dec. 19 briefing that the White House had talked with "certain members of Congress" about quietly amending FISA to explicitly permit the surveillance "and we were advised that that would be difficult, if not impossible."
The problem with FISA, experts say, is that it was created for a different world, with different communications technologies and different adversaries. The main enemy in 1978 was the Soviet Union, fixed and implacable. Global communications moved increasingly by satellite, and the transmissions could be overheard by the NSA's network of "big ear" collection stations. E-mail hadn't been invented, and the world wasn't linked by an interdependent network of fiber-optic cables.
Today America's enemy is al Qaeda, whose operatives move from place to place, phone to phone, e-mail address to e-mail address. And there have been fundamental changes in communications infrastructure: The vast majority of the world's broadband communications now passes at some point through switches in the United States. That's a huge boon for the NSA in monitoring potential enemies, but in this new world, it's much harder to distinguish between what's "foreign" and "domestic," between what's technically "in" but not necessarily "of" the United States.
To firmly set the NSA program within the law, Congress and the courts will have to think carefully about what's known in the signals intelligence world as "meta-data." These are the tags that identify the basic facts of a communication -- time, date, to, from -- but not its content. According to the Times and to other published reports, this routing information has been at the core of the NSA's new program. The agency has used sophisticated algorithms to analyze patterns of communication so that it can focus on people who may be linked to al Qaeda and then, where appropriate, target its communications through FISA warrants or other procedures.
The tricky legal question is whether a different privacy standard should apply to the meta-data that overlay the communication itself. The Supreme Court held in 1979, in Smith v. Maryland , that installing a device known as a "pen register," which records numbers dialed from a phone, was not a "search" within the meaning of the Fourth Amendment, so no warrant was required. Congress later set a higher standard protecting the privacy of these pen registers, including those used in FISA surveillance. These issues would return in any debate about amending FISA.
An abiding theme of American history is the tension between our constitutional freedoms and our national security in wartime. The country is beginning a new chapter in that debate, and the challenge will be the same as always: to use tools that can enhance security, but in a way that does not unduly diminish liberty.