"I
think it's important to point out," Homeland Security Secretary
Michael Chertoff told me in an interview, "that there's no
evidence that this is a program designed to achieve political
ends or do something nefarious."
He was talking
about the National Security Agency's warrantless "domestic
spying" program, and I couldn't agree with him more. Despite
the alarms sounded by the American Civil Liberties Union, former
Vice President Al Gore and various Members of Congress, "there
hasn't even been a hint" that the program is targeted at
domestic dissidents or innocent bystanders, Chertoff said. It's
designed to find and stop terrorists.
"If
you go back to the post-Sept. 11 analyses and the 9/11 commission,
the whole message was that we were inadequately sensitive to the
need to identify the dots and connect them," he said.
"Now,
what we're trying to do is gather as many dots as we can, figure
out which are the ones that have to be connected and we're getting
them connected," he said.
While refusing
to discuss how the highly classified program works, Chertoff made
it pretty clear that it involves "data mining" -collecting
vast amounts of international communications data, running it
through computers to spot key words and honing in on potential
terrorists.
A former
prosecutor, federal judge and head of the Justice Department's
criminal division, he convincingly defended the program's legal
basis and intelligence value.
I asked him
why the Bush administration can't comply with the 1978 Foreign
Intelligence Surveillance Act, which allows the government to
conduct "emergency" wiretaps for 72 hours.
"It's
hard to talk about classified stuff," he said, "but
suffice it to say that if you have a large volume of data, a large
number of [phone] numbers you're intercepting, the typical model
for any kind of warrant requires you to establish probable cause
[that one party is a foreign agent] on an individual number."
FISA warrant
applications are inches thick, he said, and "if you're trying
to sift through an enormous amount of data very quickly, I think
it would be impractical." He said that getting an ordinary
FISA warrant is "a voluminous, time-consuming process"
and "if you're culling through literally thousands of phone
numbers ... you could wind up with a huge problem managing the
amount of paper you'd have to generate."
What I understood
Chertoff to be saying is that when data mining produces evidence
of a terrorist contact, the government will then seek a FISA warrant
to actually tap the person's phones or "undertake other kinds
of activity in order to disrupt something."
As legal
authority for the program, Chertoff cited a 2002 decision of the
FISA Court of Review, which is one level down from the U.S. Supreme
Court, holding that a president has "inherent [constitutional]
authority to conduct warrantless searches to obtain foreign intelligence
information."
"We
take it for granted that the president does have that authority,"
the court said, "and, assuming it is so, FISA could not encroach
on the president's constitutional powers."
Chertoff
also said that the courts have given wide latitude to the government
in controlling and monitoring activity across international borders.
All reports on the NSA activity assert that it's limited to international
communications.
What about
the assertion in The New York Times on Tuesday that virtually
all of the thousands of NSA leads sent to the FBI in the months
after the Sept. 11, 2001, terrorist attacks led to dead ends or
innocent persons?
Chertoff
said, "You're going to bat well below .100 any time you do
intelligence gathering. That's true even in conventional law enforcement.
If you get even a small percentage of things to pan out, you've
succeeded to a significant degree.
"What
I can tell you is this," Chertoff said. "The technique
of electronic surveillance, which is gathering information about
who calls whom or intercepting actual conversation, is the most
significant tool in the war against terrorism.
"If
we didn't have it, I'm quite sure we'd have disrupted fewer attacks
and identified fewer [terrorists]."
Buried at
the bottom of the Times story were a number of cases
where actual terrorist operations had been disrupted, apparently
as a result of NSA eavesdropping, including efforts to smuggle
a missile launcher into the United States, to cut Brooklyn Bridge
cables with a blowtorch and an attempt to blow up a fertilizer
bomb in London.
"I would
rather move quickly and remove somebody when we've got a legal
basis to do so, charge them with a lesser offense [than terrorism]
or deport them, than wait till I have a big case with a big press
conference. If we wait until people get operational, it's a failure.
Somebody could get killed."
The idea
that someone could bring down the Brooklyn Bridge with a blowtorch
has been ridiculed, but Chertoff said, "People kid about
the shoe bomber, but had the bomb gone off and 150 people were
killed, I don't think a lot of families would be laughing about
it."
Civil libertarians
seem to fear that the government is collecting huge quantities
of data that it can later use politically, but Chertoff said,
"I don't think anybody has an interest in accumulating a
lot of information. We can barely manage the stuff we care about
for avoiding terrorism.
"I can
actually make the case that the more intelligence we've got, the
more we actually protect civil liberties. In a world without intelligence,
where we don't have a good idea where the threats are, it means
searching people, screening names, barriers and checkpoints, questioning
people when they get on an airplane."
To me, the
bottom line of the NSA spying case is this: Congress should investigate
whether President Bush has authority to conduct anti-terrorist
data mining. And, if he doesn't, Congress should give it to him
- with legislative oversight.
As Chertoff
told me, "the name of the game here is trying to figure out,
with all the billions of pieces of data that float around the
world, what data do you need to focus on? What is the stuff you
need to worry about?
"If
you don't use all the tools of gathering these kinds of leads,
then you're leaving very valuable tools on the table." And,
if and when another 9/11 occurs, the first question that will
be asked is: Why?
Mort
Kondracke is the Executive Editor of Roll Call.
