Anyone who thought seriously about this problem soon
realized after 9/11 and other major terrorist acts by militant Muslims that
conventional, criminal-justice techniques were useless in the face of acts
causing such mass casualties.
Conventional thinking is that criminal acts must be
committed in order that society act against the criminal. Thinking about or planning criminal acts is
not a prosecutable crime. Major
terrorist acts result in so many deaths and mutilations, however, that they
must be stopped before they can be carried out.
After Snowden’s acts of high treason, there has been much
discussion of the key NSA program designed to uncover and stop such terrorist
acts before they can be carried out. In
order to do this, you need intelligence concerning the planning of such acts. My understanding is that the NSA program
works in the following way:
The NSA collects in one giant database metadata on domestic
calls that all telephone companies are required to capture, store and transfer
to the agency. The metadata consists of
the calling number, the recipient number and the date and time of the
call. The actual conversations are not
recorded. Meanwhile the NSA is actually
monitoring foreign telephone calls made by suspected terrorists and by suspected
supporters and planners of terrorist acts.
It is well-known that there
exist in this country American citizens and foreign nationals legally here who
are willing participants in acts of terror against America. The names, Jose
Padilla, David Headley, Yaser Esam Hamdi, John Walker Lindh, Major Hasan, and the brothers, Dzhokhar and Tamerlan Tsarnaev, come readily to mind.
When the NSA, in its monitoring of foreign calls
discovers a call to an American resident, it goes to the FISA court to get a
warrant to pluck the calls of that resident out of the metadatabase. It can now construct a chain of all the calls
made by that person to other persons, and on and on. In that fashion it can put together a picture
of all those American citizens and residents who may be involved in a terrorist
conspiracy, as well as the identities of other foreign terrorists involved.
It seems to me that this is a vitally necessary and
Constitutional activity to keep us safe.
I hope those with little understanding of the actual workings of this
program will not bring it down.
for those who are truly interested in this serious matter, I have added Mukasey's article in today's Wall St Journal below:
Correction: A better explanation of the NSA's procedure was provided today by Michael Mukasey, "
Telephone metadata collection allows investigators to run the known number of a foreign terrorist, say, or of a safe house, against a database of U.S. calls to determine whether that number has called or been called by any domestic number. If so, investigators could then focus on that telephone and, if further evidence were sufficient, obtain a warrant to tap the content of conversations.
This does not change anything I have said above.
of Unreality in NSA Reform
The president's panel found no official
malfeasance but recommends overhauling surveillance programs anyway.
By MICHAEL B. MUKASEy Dec.
23, 2013 Wall St Journal
Grope through the
Styrofoam pellets of rhetoric that surround the 46 recommendations in the
report issued last week by the president's Review Group on Intelligence and
Communications Technologies, and you will discover that the authors "have
not uncovered any official efforts to suppress dissent or any intent to intrude
into people's private lives without legal justification." The panel's
investigation of the National Security Agency found—as
the Foreign Intelligence Surveillance Court found before them—that
the occasional unintentional violations of guidelines were stopped once they
Yet in a Dec. 20 White
House news conference, President Obama vowed that next month he will make a
"pretty definitive statement" about surveillance reform based on the
panel's recommendations. The five-member group, including University of Chicago
law professor Geoffrey Stone and Harvard Law School professor Cass Sunstein,
was appointed by the president in August amid the continuing fallout from the
theft of national-security secrets by former government contractor Edward Snowden.
presidential Review Group found no official malfeasance, what has generated the
46 recommendations for reform? The answer seems to lie more in the mind-set of
those commissioned to examine the intelligence programs than in the programs
panel scrutinized principally an NSA program that gathers telephone metadata
(which show the calling and called numbers, the date and the length of the
call), and one that monitors the communications non-U.S. persons abroad.
Outside the National Security Agency
headquarters in Fort Meade, Md. Patrick Semansky/Associated
metadata collection allows investigators to run the known number of a foreign
terrorist, say, or of a safe house, against a database of U.S. calls to
determine whether that number has called or been called by any domestic number.
If so, investigators could then focus on that telephone and, if further
evidence were sufficient, obtain a warrant to tap the content of conversations.
constitutionality of the procedure has been upheld repeatedly. And as the panel
noted, the "NSA believes that on at least a few occasions, information
derived from the . . . metadata program has contributed to its efforts to
prevent possible terrorist attacks either in the United States or somewhere
else in the world."
Review Group's report couldn't point to an actual invasion of privacy from
NSA's collection of telephone metadata. Yet, astoundingly, the panel recommends
that the program be terminated with a transition "as soon as reasonably
possible to a system in which such meta-data is held instead either by private
providers or by a private third party."
In other words, if
investigators want to check a telephone number they should be required to
scurry around to each individual provider— AT&T, Verizon,
etc.—to run the check, possibly against data bases that are inconsistently
arranged, with consequent loss of time and efficiency. What if this arrangement
"seriously undermines the effectiveness of the program," as well as
national security? The panel suggests that "the government might authorize a
specially designated private organization to collect and store the bulk
telephony metadata" (emphasis added).
panel, in short, is recommending an experiment: If there is serious damage to
the program—measured, say, by a successful terrorist attack—well, then we can
have the data placed in the hands of a private party, and we know nothing can
go wrong with that.
president's Review Group offers two reasons why the NSA must not gather this
telephone metadata. One is that the government might use the business-records
rationale for gathering metadata to cull other sensitive personal information
in medical records and the like. Of course, no evidence suggests that any such
thing has been tried or even contemplated by anyone in authority.
second reason offered for terminating the NSA program is that telephone
metadata can be mined to construct a profile of a particular person—who that
person has called and who has called that person—and the possibility of that
occurring would unsettle many people if they thought it was being done to them.
No evidence suggests that any such thing has been proposed or done, and indeed
the 22 people at NSA who have access to the data are forbidden to use metadata
in any fashion other than to run it against suspect telephone numbers.
the panel finds that mere public awareness of potential abuse "can
significantly undermine public trust, which is exceedingly important to the
well-being of a free and open society." To be sure, the panel recommends
that the government "commission a study of the legal and policy options
for assessing the distinction between metadata and other types of
information." But in the meantime, the NSA would cease to collect telephone
about gathering electronic intelligence abroad? The panel reasons that although
the law authorizing that activity "has clearly served an important
function in helping the United States to uncover and prevent terrorist attacks
both in the United States and around the world (and thus helps protect our
allies), the question remains whether it achieves that goal in a way that
unnecessarily sacrifices individual privacy and damages foreign
the panel finds the NSA wanting—for failure to uphold Article 12 of the
Universal Declaration of Human Rights and Article 17 of the International
Covenant on Civil and Political Rights, which "proclaim that 'No one shall
be subjected to arbitrary or unlawful interference with his privacy.' Although that
declaration provides little guidance about what is meant by 'arbitrary or
unlawful interference,' the aspiration is clear. The United States should be a leader in
championing . . . the right of privacy, which is central to human
dignity." Based on that "clear" aspiration, the Review Group
recommends that protections of the Privacy Act of 1974 be extended even by
intelligence-gathering agencies to non-U.S. persons so as to permit them, for
example, to discover the personally identifiable information in their
intelligence file, "unless the agencies provide specific and persuasive
reasons not to do so."
sure—it's hard to imagine what "specific and persuasive" reason there
might be not to allow a foreign terrorist to check on whether the U.S. government has a file
on him and what may be in it.
recommendation: The U.S. should declare that surveillance abroad "must not
target any non-United States person located outside of the United States based solely on that
person's political views or religious convictions." So, for example, if a
previously unknown group declares it a religious obligation to kill Americans,
we must promise not to target that group or its leaders for surveillance to
determine whether they have the operational capability to put their
"political views or religious convictions" into practice. Makes
And what about the National Security Agency itself?
The president wisely has already rejected the panel's idea that the director of
NSA no longer head the U.S. Cyber Command. But the panel also advocates
separating the NSA from Cyber Command, and detaching the NSA's
information-assurance (code-making) function from its foreign-intelligence
(code breaking) function. Why? Because after the 9/11 terror attacks, many in
government advocated new national-security measures, and "if a similar or worse
incident . . . were to occur in the future, many Americans, in the fear and
heat of the moment, might support new restrictions on civil liberties and
privacy. The powerful existing and potential capabilities of our intelligence
and law enforcement agencies might be unleashed without adequate
controls." Better to break up a successful team than risk that.
such airy reasoning, not to mention arrogant mistrust of this country's
citizens and its institutions, is the small change of daily discourse in faculty
lounges. But to find this infiltrating the Situation Room of the White
House—President Obama met with the Review Group there before leaving on his
Hawaiian vacation—is truly alarming.
Mukasey served as U.S.
attorney general (2007-09) and as a U.S.
district judge for the Southern District of New York (1988-2006).
Labels: War on Islamic Terrorism