The Legality of Surveillance

The Washington Times
Published May 18, 2006

[Editor's Note: This is one issue where the truth seems unable to break through. The demagogues keep using an incorrect term, "wiretapping," and also mischaracterizing the government's actions in what must be a deliberate effort to misinform the people. This article helps to clear up some of the misinformation.]

Even the Bush administration's toughest critics must now concede that their case against the National Security Agency's terrorist surveillance is unraveling. That's inconvenient, since the opening of Gen. Michael Hayden's CIA confirmation hearings this morning would otherwise provide a great opportunity for fireworks. But the truth is sometimes like that.

Practically speaking, the last two weeks have witnessed increasing certainty that NSA surveillance is data-mining and "pattern analysis" of phone records, not surveillance per se, at least not of domestic calls as critics have alleged. To the extent that the NSA may be listening or otherwise examining the contents of communications, administration officials are on record describing the listening as targeted to international calls and e-mails only, and only then by persons known to collaborate or suspected of collaboration with international terrorism. There is a world of difference between this and what the critics have charged.

The strongest defense of NSA surveillance so far comes from the Federalist Society in a brief authored by Andrew C. McCarthy, David B. Rivkin Jr. and Lee A. Casey, three renowned conservative experts on the subject whose paper we commend to anyone seeking to understand the administration's position. The authors' central argument is that the president's authority to order surveillance derives from his inherent constitutional authority to defend the nation and supercedes whatever the 1978 Foreign Intelligence Surveillance Act (FISA) requires. But one need not accept this position, nor think the 1978 FISA framework is invalidated, to see that NSA surveillance is almost certainly legal.

For one, FISA exempts the type of "pattern analysis" described anonymously in recent press reports. In fact, 50 U.S.C. 1802 authorizes the president (or his agent) to conduct electronic surveillance if "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Note the word "contents." If, as USA Today reported, "this program does not involve the NSA listening to or recording conversations," but instead "analyze calling patterns in an effort to detect terrorist activity," then a court order under FISA would not be required. So much for the "Bush is eavesdropping illegally" line that the Democrats have been peddling.

Moreover, the Supreme Court has also agreed that fewer Fourth Amendment protections are afforded to call patterns and phone numbers (as compared to the substance of communications, which are more fully protected). It did so in the 1979 case Smith v. Maryland, which upheld the use of a "pen register" created by a telephone company at police request to monitor phone calls. A "pen register" is not a "search" within the meaning of the Fourth Amendment, the court argued, and therefore does not require a court warrant.

All these facts lend the administration a strong presumption that its activities were legal and warranted, in which case the whole uproar surrounding them looks to be a sham.

The important point to be remembered in this debate is that America's clear strategic advantage over al Qaeda is our technological superiority. Al Qaeda has advantages in its fluid organizational structure, ability to blend in and its ruthless disregard for the laws of war and innocent human life. Technology is the West's home turf. Our "asymmetric" advantage is found in exploiting it.

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