The Future of Warrantless Wiretap/Terrorist Surveillance
The old story of National Security Agency (NSA) wiretaps is back with a vengeance. The USA Today’s lead story is creating a major controversy, as the confirmation hearing of General Michael Hayden to be the next head of the CIA is getting close.
Even the vocabulary of this controversy is totally divergent. President George W. Bush calls it “terrorist surveillance,” which makes it as popular as apple pie in the American political lexicon, while the critics of this program call it “warrantless wiretaps” or “warrantless eavesdropping,” underscoring its illegality. Haden’s confirmation may not be seriously jeopardized as a result of this evolving brouhaha, but the future of that program certainly is questionable.
According to the USA Today’s dispatch, the U.S. government is “secretly collecting the phone call record of millions of Americans, using data provided by AT& T, Verizon and BellSouth…” This program is reported to have started soon after the September 11, 2001 terrorist attacks on the United States. The NSA approached the telecommunications giants and used the argument that “national security is at risk, and we need your help to protect the country from abroad.” Those companies did not envisage any problem and decided to cooperate fully. However, there are several problems associated with the controversy.
First, there is problem related to “data mining” or “trolling,” whereby the NSA is reportedly using the data collected illegally for analyzing calling patterns of millions of Americans. The government’s claim is that it is only involved in analyzing calling patterns to “detect terrorist activity.” However, critics ask whether NSA’s data mining means millions of Americans are under suspicion.
Second, the NSA claims that it is only focused on calls originating from abroad. According to the USA Today, “sources, however, say that is not the case.” A huge number of those calls originated from the United States.
Third, the three telephone companies that are unreservedly cooperating with the NSA on this matter are not talking. That leads to increased suspicions among the U.S. lawmakers as to how extensive this wireless wiretapping really is.
Fourth, there is that credibility issue that is coming back to haunt the Bush administration. In a hastily arranged press briefing today, Bush said, “We are not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al-Qaida and their known affiliates.”
The American public is double minded about this issue. It is willing to tolerate wireless eavesdropping to fight terrorism; however, it remains concerned about the implications of such an aggressive approach of fighting terrorism for civil liberties inside the United States.
There is little doubt that the American public remains wary of the current administration. After all, this is the same administration that has been involved in Guantanamo and Abu Ghraib systematic abuse of prisoners in the name of collecting intelligence. It is the same administration which has allowed the “black prisons,” and “rendition” of detainees and prisoners to autocratic regimes of the Middle East that have a long and shameful record of torturing confessions out of prisoners. All of that was under the rubric of fighting terrorism.
Finally, and most important, all of these activities have been carried out without the approval of the FISA (Foreign Intelligence Surveillance Act), which has been on the books since the late 1970s. The Bush administration used the argument that the FISA procedures were “too slow in some cases.” The U.S. Attorney General, Alberto Gonzales, also argued that the U.S. Patriot Act give the current administration “broad authority to protect the safety of the nation’s citizens.”
Michael Hayden’s problem is that he was director of the NSA while this program was implemented. His critics will have no problem in confirming him as intelligence professional. He certainly brings very impressive credentials to the job. Despite the fact that he headed one of most secretive intelligence agencies of the United States, he has established a good record of being available to the press. Only a week or so ago, he also spoke to the National Press Club, which is an elite gathering of America’s top journalists.
Hayden’s chief problem right now is that, at a time when the CIA needs a director who is free of political baggage, he is certainly bringing ample political baggage of his own to the job. Moreover, his willingness to go along with the current administration over the warrantless eavesdropping speaks volumes about his unquestionable loyalty to his superiors even when carrying actions whose legality is dubious at best.
Still, Hayden is likely to be confirmed. However, all indications are that the price of his confirmation would be as full a disclosure of the nature of this wireless eavesdropping as it is feasible, even if such a disclosure comes out behind closed doors.
Even then, the Democrats would want sufficient guarantees about the administration’s complete honoring of the FISA procedures. There are already informal discussions in progress suggesting that perhaps the FISA procedures needs to be revisited with a view to revising them. The Democrats would have no problem giving those procedures a thorough hearing. However, as long as they are not revised, the Democrats would want assurances from the government that they will not be violated in the future.
Ehsan Ahrari is the CEO of Strategic Paradigms Defense Consultancy based in Alexandria, VA, US. His columns appear regularly in Asia Times Online. He is also the USA Editor of World Security Network Online (WSN), and a regular contributor to the Global Beat Syndicate. He can be reached at: [email protected] or [email protected].