Aziz Huq is associate counsel at the Brennan Center for Justice at NYU School of Law. He is co-author of Unchecked and Unbalanced: Presidential Power in a Time of Terror, to be published in 2007 by the New Press.
There is no “drift-net.” There is only a “very specific and very targeted” collection of data. So said General Michael V. Hayden, former chief of the National Security Agency on Feb. 5 this year about the NSA’s domestic activities. Without doubt, senators of both stripes stand ready to grill Gen. Hayden about these statements in light of USA Today’s startling revelation that the NSA has been assembling a mammoth database detailing the source, destination and timing information on almost every telephone call made in the United States.
Whether the CIA ought to be led by a man who, at best, has been economical with the facts is a legitimate consideration for senators asked to sign-off on the president’s selection. Doubtless, the Senate must also ask whether Hayden is the right man to rectify disarray sown by deeply partisan congressional staffers that Porter Goss brought to the CIA, known within the Agency as “Gosslings.” Is Hayden—the man who hewed loyally to the White House’s wishes even as senior Justice Department lawyers protested the expansion of NSA authority at home—the best choice to purge the CIA of partisan bias? Will he be able to reassert the Agency’s mandate against Donald Rumsfeld’s attempts to fashion an alternative intelligence collection and covert actions capacity within the military?
These are desperately difficult questions for a nation haunted by the specter of catastrophic terrorism. But the data-mining operation uncovered by USA Today’s ingenious reporting raises other, more troubling structural questions—questions underscored by news that Vice President Cheney and his legal adviser David Addington were ready to throw all restraints on spying to the winds after 9/11. Congress simply cannot address all these questions in the Hayden hearings, and it ought not to. Instead, the Hayden hearings must be the beginning of a longer national conversation.
The larger structural problem is that technology is outpacing constitutional law and Congress is not doing enough to either preserve foundational privacy rights or to ensure that intelligence agencies do not fritter resources away on unwise and excessive “drift-nets.” So long as the executive branch remains a step ahead of Congress, the abusive and unwise use of technology will always be possible.
One way of seeing the problem is by looking closely at the nationwide culling of information on telephone calls that USA Today revealed this week. From what is known to the public, this appears not to violate the Constitution’s prohibition against unreasonable searches and seizures. If the NSA indeed limited itself to collecting only the telephone numbers and timing, and did not look at content, its activities would fall within the legal safe harbor fashioned by the Supreme Court in 1979. In a case called Smith v. Maryland, the Court held that a person has no reasonable expectation of privacy in the phone numbers he or she dials. Hence, “pen registers” and “trap and trace” devices, which collect “externals”—e., the telephone numbers being called and doing the calling, and the timing and duration of the call—but not the internal content of calls, do not demand a warrant under the Fourth Amendment.
Rather, the NSA seemingly induced AT&T, Verizon and BellSouth to violate prohibitions in the Stored Communications Act and the 1996 Telecommunications Act that protect data privacy. These statutes prohibit telephone companies’ disclosure of customer information except under narrow circumstances that appear not to apply here.
The president does not have a roving mandate to set aside federal law whenever he thinks it’s necessary, despite what Cheney and Addington believe. If the administration wants to broaden its surveillance beyond the bounds of present federal law, it remains free to go to Congress to seek new powers—as it did several times since September 2001. The administration’s argument that it could not seek new powers from Congress without tipping off al-Qaida is nothing short of absurd. FISA always permitted surveillance for intelligence purposes based on a thin evidentiary record. Moreover, non-resident aliens have always fallen outside FISA. The government, in short, could have spied on the 9/11 hijackers without any warrant.
The administration’s decision to go around Congress slights the Constitution’s core principle of checks and balances. It also means that we, the public, do not have the chance to engage in debates of fundamental importance about new technologies, new threats, and the means for preserving fundamental liberties.
Recall that it was 1979 when the Supreme Court decided that externals fell outside the Fourth Amendment’s shelter. Three years earlier, the Court held that records kept by third parties, such as banks, also are outside the Fourth Amendment’s scope.
Since these decisions, however, advances in information technology have allowed the development of “supermassive” databases of personal information, and new data-mining tools to exploit them. Consider, for example, the services offered by private companies such as ChoicePoint and LexisNexis. ChoicePoint maintains a comprehensive database of “17 billion current and historical records on individuals and businesses.” Anyone can purchase an “easy-to-read” report that includes a suggestive category of “derogatory information.” LexisNexis offers to law enforcement its similar Accurint database, which includes public and non-public information, as a way to “shorten investigation time” and “free up valuable staff.”
As long as credit card companies and marketers can and do exploit data-mining technologies to learn our intimate preferences for pistachio ice-cream and the novels of Danielle Steele, the public will ask why the federal government does not use the same powers to identify and guard against terrorist threats. Arguments in favor of privacy will likely fare poorly if deployed unflinchingly to justify blanket prohibitions on data-mining.
In 2003, Congress shut down a proposed data-mining program called “Total Information Awareness” run by Iran-Contra veteran John Poindexter. Now it appears that parts of that program are resurfacing under different names. By failing to conduct critical oversight, Congress allowed itself to be written off the constitutional map. It would be far better to engage in an extended and meaningful public debate about the benefits to security and the costs to privacy involved in data-mining. Rather than assuming that trade-offs must necessarily be made between rights and safety, Congress and the public must explore whether there are accountability mechanisms that guard individuals while allowing optimal use of new technology.
Checks and balance sufficient to new technologies and new threats, however, will only emerge through meaningful debate. As long as the executive branch follows the lead of Cheney and Addington, that debate will not occur. The result will be unilateral measures adopted to vindicate an expansive vision of executive power, rather than carefully wrought tools that hone in on real threats. The Hayden confirmation hearings will touch on this debate. But senators simply cannot canvass the complex technological and legal issues involved in data-mining in their limited ambit.
Where Hayden is confirmed or not, his hearing must not be the final word. Too much is secret. Too many issues today are in urgent need of careful airing and intelligent debate. Basic rights and fundamental security will remain in jeopardy so long as this debate does not occur.