Why Tracking our Telephone Calls is Not a Good Idea

When the Senate Intelligence Committee convenes today to consider General Michael Hayden’s nomination to lead the CIA, Hayden will doubtless rightly be praised as a seasoned and talented career intelligence professional well-known and well-liked on Capitol Hill. But, he will also, doubtless and rightly, face some tough questions. For instance, at a time when the CIA is losing ever more turf to the Pentagon and the recently created office of Director of National Intelligence, is an active duty military man, formerly serving as the chief of a DOD- based intelligence service (the National Security Agency), and currently serving as the deputy to the DNI, the right choice to revitalize the demoralized and enfeebled agency? Or, at a time when the intelligence community is especially weak in human intelligence, does is to make sense to send an expert in the technology based field of “signals” intelligence to Langley?

But, surely, and rightly, the toughest questions will be those surrounding the NSA’s controversial domestic surveillance program. The General was going to have a hard enough time justifying a program that was touted as limited to intercepting communications between known or suspected terrorists abroad and potential collaborators here at home without the sanction of a court warrant. If the USA Today account last week is true, the General will have a much tougher time justifying tracking tens of millions of purely domestic calls without a warrant, in the hope that patterns among them might identify terrorists or help to spot terrorist activity.

The Administration and outside proponents of these programs defend them on the grounds that if a terrorist outside the United States is talking to someone inside the United States, at a minimum, we want to know who that “someone” is. Who, pray tell, can argue with that?

But, if that rationale can be reasonably be said to justify the interception program (though, I’ve yet to hear a convincing argument as to why the procedures under the Foreign Intelligence Surveillance Act to obtain a court warrant are unduly burdensome), it certainly does not justify the tracking program. One has to assume the conclusion – that at least one party to the chain of communications is a terrorist, or is somehow engaged in activity that aids and abets terrorists – to justify keeping track of the chain of communications in the first place. And, yet the scope of the program – an effort to keep a record of every call made and received in the United States since 9/11 – is so breathtakingly broad that no one can plausibly claim that any but a tiny fraction of the calls tracked is likely to be terrorist- related.

If there is a program like that described in USA Today, it should be worrisome to more than the ACLU and other professional civil libertarians. Most Americans are willing to sacrifice some degree of personal freedom (taking off our shoes at airports, say, or showing some form of identification to get into government buildings) to make ourselves somewhat more secure from terrorism. But, intuitively, we believe that the sacrifice required should be at least somewhat proportionate to the additional security obtained. It is a huge sacrifice to give up the expectation that we average, law-abiding Americans can make and receive phone calls without government scrutiny in exchange for the off chance that the government’s tracking our calls might eventually lead to a terrorist or a terrorist plot.

If the President is right to say that we are “at war” with terrorists here at home, and, in my judgment, he is, we must remember that ultimately wars can be won only when they have the support of the public. Two different polls last week suggested that the public is of two minds about this program, with 53% in one poll concluding that it goes too far in invading personal privacy, and 63% in another concluding that it is an acceptable way to investigate terrorism. My bet is that, over time (absent another attack and the hysteria one would cause), overwhelming numbers of Americans will decide that this program is overly intrusive, and support for the war on terror overall will wane as people conclude that the terrorist threat is overblown. That would be dangerous, because the threat of terrorism is very real, indeed, and there are many, far more reasonable steps that we should and must take to make ourselves as secure as possible.

Furthermore, even in the short-term, a program like this is counterproductive. The NSA does not suffer from a dearth of information; the problem is quite the reverse. Recall that two messages foretelling 9/11 were intercepted by the NSA on September 10, 2001; the volume of messages intercepted was such that those particular messages were not translated until the day after 9/11. And, according to news reports, the more limited intercept program has been said by the FBI to have been largely a waste of time and resources and a diversion from far more productive counterterrorism work. Spotting terrorists and terrorist activity is always like looking for a needle in a haystack. By tracking tens of millions of domestic calls without a clear, initial link to terrorism, the NSA is merely piling tons and tons more hay on the haystack and making the needles within that much harder to find.