Yet, because the operation is wrapped in layers and
layers of secrecy – based on the dubious argument that al-Qaeda might
not realize it’s being spied on – the public doesn’t know how much the
project costs, who’s getting contracts and whether it does any good.
So far, however, what administration officials and
computer experts have been willing to describe shouldn’t give Americans
much confidence that their trade-off of Fourth Amendment freedoms for a
little extra safety is a particularly good deal.
The project’s designers say the National Security
Agency’s electronic warehousing of trillions of phone records from calls
made by some 200 million Americans is intended to seek out “patterns”
from conversations involving alleged terrorists and then to apply the
digital outline to the stockpiled records.
That search, presumably, then spits out the phone
numbers of other callers in the United States who fit into the
“patterns.” These computer-generated tips then go to the FBI, which may
question the suspects or use other investigative strategies.
There are, however, logical flaws to this “Big
Brother” computer scheme, especially the idea that the project is likely
to discern many usable “patterns” of phone calls that if applied to the
population would detect much suspicious activity.
The 9/11 hijackers, for instance, made very few
substantive calls about their plot, recognizing the risk of electronic
surveillance and preferring face-to-face meetings as a way to avoid
detection, according to the 9/11 Commission Report.
Most of the calls cited by the report relate to
personal matters, such as contacting friends or searching for housing.
For instance, Flight 93 hijacker Ziad “Jarrah made hundreds of phone
calls to [his girlfriend] and communicated frequently by e-mail,” the
On Jan. 20, 2001, Flight 173 hijacker Marwan al
“Shehhi telephoned [his family in the United Arab Emirates] and said he
was still living and studying in Hamburg,” Germany, the report said. The
cell-phone records of 9/11 ringleader Mohammed Atta showed him calling
about lodging in Florida on April 6, 9, 10 and 11, 2001.
Meaningful communications about the 9/11 plot
almost always occurred in direct meetings between participants, often in
foreign countries. According to the 9/11 report, al-Qaeda leader Osama
bin-Laden passed on his final instructions to Atta through intermediary
Ramzi Banalshibh in Spain.
So, even with the most expensive computers, it’s
hard to see how a “social-network analysis” would likely lead to
revealing a terrorist plot, unless the analysis was aided by effective
human intelligence. In other words, old-fashioned
intelligence-gathering, not new-fangled gimmicks, still would be the key
to stopping terrorism.
That seems to be the conclusion, too, of a
Washington Post source who helped develop the technology.
“Let’s say lots [of data] comes in and we don’t see
anything interesting,” the source said. “Tomorrow we find out someone is
communicating with a known terrorist. When you go back and look at the
past data, there may be information that you missed. A pattern that was
meaningless suddenly makes sense.”
That information would then guide the NSA in
selecting which telephones in the United States to bug, the Post
reported. [Washington Post, May 12, 2006]
But that example could be handled almost as easily
while complying with constitutional requirements and getting a warrant.
The case also presumes that there was a break in the investigation
elsewhere that identified one of the contacts as a terrorist.
Once there is “probable cause” of terrorist
activity, a secret warrant could be obtained from a special court under
the 1978 Foreign Intelligence Surveillance Act – or a wiretap could be
started 72 hours before the request is made. The terrorist’s contacts
then could be traced lawfully.
According to other published accounts, Bush’s
warrantless surveillance operation also has had negative consequences,
sending FBI investigators off on too many wild goose chases. The
warrantless wiretapping generated thousands of tips each month, the New
York Times reported..
“But virtually all of [the tips], current
and former officials say, led to dead ends or innocent Americans,” the
Times wrote. “FBI officials repeatedly complained to the spy agency that
the unfiltered information was swamping investigators. … Some FBI
officials and prosecutors also thought the checks, which sometimes
involved interviews by agents, were pointless intrusions on Americans’
privacy.” [NYT, Jan. 17, 2006]
Perhaps the best that can be said for
storing trillions of American phone records – as disclosed in a May 11
article by USA Today – is that the NSA could move a bit faster in
checking out leads that might arise from identifying a terrorist.
The FISA law allows the government to start
immediate wiretaps, but the NSA would probably save some time in not
having to get the data from the phone companies, since it would already
To get that slight advantage in speed,
however, large sums of money is spent, funds that might be better used
for training counter-terrorism agents, hiring more translators and
inspecting more than five percent of the cargo containers entering U.S.
An even more troubling trade-off is the
possibility that Bush or some future President could exploit the
stockpiled data for political ends.
The Founders enacted the Fourth Amendment
because they considered freedom from unreasonable search and seizure an
“unalienable” right of all citizens. The principle has been largely
upheld over more than two centuries of American constitutional history,
including moments of danger arguably far more extreme than what is
presented today by a small band of al-Qaeda terrorists.
But after the 9/11 attacks, George W. Bush quickly
assembled a system of secrecy and snooping
that may have been unprecedented in U.S. history. While some of Bush’s
supporters cite prior suspensions of constitutional rights during the
Civil War and World War II, those eras lacked today’s technology to pry
into the most personal details of the lives of Americans.
Even in the late 1960s
and early 1970s, President Richard Nixon had relatively crude means for
invading the privacy of Americans. Bugs were placed on phones; agents
were infiltrated into political organizations; and burglars were sent
into homes and offices searching for embarrassing or incriminating
By contrast, today’s
modern technology would let the government collect and analyze trillions
of bytes of data from transactions and communications. Indeed, in 2002,
the Bush administration did explore the creation of a system for
capturing the electronic footprint of just about everybody as they move
through everyday life.
The concept, called Total
Information Awareness, would have pulled together data on virtually
every action that is connected to a computer: books borrowed from a
library, fertilizer bought at a farm-supply outlet, movies rented at a
video store, prescriptions filled at a pharmacy, sites visited on the
Internet, tickets reserved for travel, borders crossed, rooms rented at
a motel, and hundreds of other examples.
The Defense Advanced
Research Projects Agency, the Pentagon’s top research and development
arm, commissioned a comprehensive plan for electronic spying that would
track everyone in the world who is part of the modern economy.
would be gleaned from electronic data on every kind of activity –
“financial, education, travel, medical, veterinary, country entry,
place/event entry, transportation, housing, critical resources,
government, communications,” according to DARPA’s Information Awareness
The program would then
cross-reference this data with the “biometric signatures of humans,”
data collected on individuals’ faces, fingerprints, gaits and irises.
The project sought to achieve what it called “total information
awareness” as a way to fight the War on Terror.
The Information Awareness
Office even boasted a logo that looked like some kind of clip art from
George Orwell’s 1984. The logo showed the Masonic symbol of an
all-seeing eye atop a pyramid peering over the globe, with the slogan,
“scientia est potentia,” Latin for “knowledge is power.”
Heading the office was
Ronald Reagan’s former national security adviser, John Poindexter, who
had been a leading figure in the Iran-Contra scandal. Poindexter was
convicted of five felonies in 1990, but his case later was overturned by
a conservative-dominated three-judge appeals court panel.
After the Information Awareness Office came under public scrutiny in
2002, Poindexter resigned and the project was supposedly shut down.
What’s now clear, however, is that elements of “total information
awareness” survived in other forms.
Indeed, given the
disclosures about the NSA collecting the phone records of some 200
million Americans, a logical extension for the Bush administration would
be to factor in more of Poindexter’s ideas.
The argument could be
made that if phone records were merged with credit card purchases and
other electronic data, the chances of locating a terrorist actually
might be increased. For Americans who put their personal safety
over the nation’s “unalienable rights,” that might be trade-off they
would find acceptable.
But for Americans who believe that fear should
never be allowed to trump liberty, a voluntary surrender of the freedoms
that have defined the United States – in exchange for some questionable
assurances of a little more safety – would be unthinkable.