Cross posted from TomPaine
President Bush famously said that his administration took the battle overseas so that we would not need to fight the war at home. Revelations about the NSA’s warrantless domestic spying suggest that this formulation has the administration’s logic backward: The authority to conduct war elsewhere has been treated as permission to bring the tools of war back home.
This is the little-noticed issue at the heart of ongoing controversies over the NSA’s spying. It knots together the complex legal and political issues in that tangled debate. The administration’s key legal justification rests on the controversial proposition that the whole United States is a battlefield, and we are all potential enemy soldiers. But the administration has also been fighting tooth and nail to resist congressional inquiries, sought by Rep. Heather Wilson, R-N.M., and Sen. John Rockefeller, D-W.Va, into the war powers that have in fact been brought to bear on Americans at home. How indiscriminate has this use of war powers been? And what is the collateral damage?
There is no question that electronic surveillance of Americans citizens’ (or lawful permanent residents’) communications with people overseas is illegal in the absence of statutory authority. In 1978, Congress passed a law- the Foreign Intelligence Surveillance Act, or FISA- that channels surveillance through the federal courts, except in tightly constrained, exceptional circumstances.
FISA was animated by the discovery by the Senate Select Committee led by Sen. Frank Church of extensive wiretapping and bugging of political activists during the Cold War. Presidents, we learned, had long avoided or flouted law and Supreme Court opinions. President Franklin D. Roosevelt, for instance, simply ignored a 1937 decision that a 1934 federal telecommunications law criminalized the interception and sharing of wire and radio communications. FISA, therefore, was unequivocal in demanding clear authorization, by statute, before an intelligence agency listened in on Americans at home.
Understandably, the administration has been reluctant to tilt full-speed at FISA- only Sen. Pat Roberts, R-Kan., has half-heartedly done that. Instead, its defense rests on the claim that the “Authorization for the Use of Military Force,” passed by Congress on September 14, 2001, to enable the Afghan invasion, allows the federal government today to wield a full panoply of war powers against anyone in the United States.
By any metric, this is a stunningly broad legal claim. It extrapolates recklessly from Congressional approval of a war on the other side of the globe to legislative endorsement of a geographically unlimited conflict running from Kabul to Kansas City. The administration is claiming nothing less than the power to intrude into the privacy of any American, and also to detain anyone the president deems dangerous, without oversight from Congress or the courts.
Even though the administration’s defense rests on shaky legal ground, federal courts have to date been reluctant to challenge it. Sensitized by years of assault from conservative critics for “legislating from the bench,” courts have proved adept at dodging claims that push them into conflict with the executive branch. At least two federal courts have endorsed the idea that the battlefield engulfs the United States. One district court and one court of appeals signed off on this broad vision in cases concerning presidential lock-up of individuals designated as “enemy combatants” within the United States.
Yet at its roots, the administration’s assertion of war powers is a political one: It is a claim that the American people have signed-off on an endless and borderless war. But this claim is becoming increasingly hard to sustain. Recently, prominent neoconservative Francis Fukuyama argued that “‘war’ is the wrong metaphor for the broader struggle” globally against extremist Islamist terrorists. If Fukuyama is correct that our struggle against extremist violence overseas is ill-conceived as a “war on terror,” how can the administration’s use of war powers at home be justified as sound policy?
The short answer is it can’t. And that is why the administration has resisted disclosure of details about the NSA’s domestic spying program. In rejecting the criminal law of FISA, and asserting war powers, the administration has claimed authority to use breathtaking indiscriminate search technologies that trench wide and deep on Americans’ privacy interests, technologies that sweep beyond individual suspects to rake in many innocents before the government’s sights.
The NSA program, as described on December 16 by groundbreaking New York Times reporters James Risen and Eric Lichtblau, is an order of magnitude larger than the narrowly targeted program described by the administration. Rather than honing in on a handful of individuals, Risen and Lichtblau report, the NSA is engaged in “link analysis”: It identifies one telephone number with a connection to a terrorist suspect, and then traces anyone who has been in contact with that number. It then does the same thing, searching for suspects. Hardly more than a dragnet, “link analysis” is precisely the kind of free-ranging “general” search feared by the framers of the Fourth Amendment. Its net yield is surveillance of hundreds, possibly thousands, of individuals with no real connection to terrorist groups, who pose no real threat.
Further, it is quite possible that such surveillance would fall more heavily on specific immigrant communities and religious groups, given the religious self-identification of Al Qaeda and its allies.
The administration has moreover declined to confirm or deny whether the NSA has engaged in “data mining,” although NSA has supported financially research into such technology. Eschewing any trace of individualized suspicion, data mining involves application of powerful algorithmic search tools to identify associations, sequences, or patterns in the oceans of communication flowing across the nation. By correlating multiple pieces of data rapidly, data mining might be used, say, to pick out people who have telephoned Pakistan, who have purchased books about Islam, and who have transferred money to a non-U.S. financial institution all in the past six months. Data-mining is limited only by the ingenuity of the programmer and her access to data.
Link analysis and data mining are blanket measures legally feasible only if the administration forsakes the criminal law paradigm for the war model. Yet the administration has never made the case that such sweeping and intrusive powers are justified. On the contrary, Congress and the public have long rejected invasive surveillance techniques that are detached from any requirement that the individual under watch be a terrorist suspect.
Now the administration keeps from public scrutiny the evidence of collateral damage from applications of war powers here by resisting calls for congressional inquiry into the NSA’s domestic spying. It keeps, in other words, the public from knowing whether the awesome powers grasped by the administration can be vindicated. Worse, it seems to be asking Congress to retroactively authorize an illegal program without any accounting of how much damage the program has wrecked.
The deafening silence from the administration does not suggest there are comforting answers to these pressing questions of fact. And its solutions are simply more of the same “trust us” rhetoric that has, time and again in the recent past, been found to be deceitful.
Aziz Huq: “At the NSA, the Enemy is Us” (PDF)