Civil Liberties and National Security
By George Friedman
USA Today published a story last week stating that U.S. telephone companies (Qwest excepted) had been handing over to the National Security Agency (NSA) logs of phone calls made by American citizens. This has, as one might expect, generated a fair bit of controversy -- with opinions ranging from "It's not only legal but a great idea" to "This proves that Bush arranged 9/11 so he could create a police state." A fine time is being had by all. Therefore, it would seem appropriate to pause and consider the matter.
Let's begin with an obvious question: How in God's name did USA Today find out about a program that had to have been among the most closely held secrets in the intelligence community -- not only because it would be embarrassing if discovered, but also because the entire program could work only if no one knew it was under way? No criticism of USA Today, but we would assume that the newspaper wasn't running covert operations against the NSA. Therefore, someone gave them the story, and whoever gave them the story had to be cleared to know about it. That means that someone with a high security clearance leaked an NSA secret.
Americans have become so numbed to leaks at this point that no one really has discussed the implications of what we are seeing: The intelligence community is hemorrhaging classified information. It's possible that this leak came from one of the few congressmen or senators or staffers on oversight committees who had been briefed on this material -- but either way, we are seeing an extraordinary breakdown among those with access to classified material.
The reason for this latest disclosure is obviously the nomination of Gen. Michael Hayden to be the head of the CIA. Before his appointment as deputy director of national intelligence, Hayden had been the head of the NSA, where he oversaw the collection and data-mining project involving private phone calls. Hayden's nomination to the CIA has come under heavy criticism from Democrats and Republicans, who argue that he is an inappropriate choice for director. The release of the data-mining story to USA Today obviously was intended as a means of shooting down his nomination -- which it might. But what is important here is not the fate of Hayden, but the fact that the Bush administration clearly has lost all control of the intelligence community -- extended to include congressional oversight processes. That is not a trivial point.
At the heart of the argument is not the current breakdown in Washington, but the more significant question of why the NSA was running such a collection program and whether the program represented a serious threat to liberty. The standard debate is divided into two schools: those who regard the threat to liberty as trivial when compared to the security it provides, and those who regard the security it provides as trivial when compared to the threat to liberty. In this, each side is being dishonest. The real answer, we believe, is that the program does substantially improve security, and that it is a clear threat to liberty. People talk about hard choices all the time; with this program, Americans actually are facing one.
A Problem of Governments
Let's begin with the liberty question. There is no way that a government program designed to track phone calls made by Americans is not a threat to liberty. We are not lawyers, and we are sure a good lawyer could make the argument either way. But whatever the law says, liberty means "my right to do what I want, within the law and due process, without the government having any knowledge of it." This program violates that concept.
The core problem is that it is never clear what the government will do with the data it collects.
Consider two examples, involving two presidential administrations.
In 1970, Congress passed legislation called the Racketeer-Influenced and Corrupt Organizations (RICO) Act that was designed explicitly to break organized crime groups. The special legislation was needed because organized crime groups were skilled at making more conventional prosecutions difficult. The Clinton administration used the RICO Act against anti-abortion activists. From a legal point of view, this was effective, but no one had ever envisioned the law being used this way when it was drafted. The government was taking the law to a place where its framers had never intended it to go.
Following 9/11, Congress passed a range of anti-terrorism laws that included the PATRIOT Act. The purpose of this was to stop al Qaeda, an organization that had killed thousands of people and was thought to be capable of plotting a nuclear attack. Under the same laws, the Bush administration has been monitoring a range of American left-wing groups -- some of which well might have committed acts of violence, but none of which come close to posing the same level of threat as al Qaeda. In some technical sense, using anti-terrorism laws against animal-rights activists might be legitimate, but the framers of the law did not envision this extension.
What we are describing here is neither a Democratic nor a Republican disease. It is a problem of governments. They are not particularly trustworthy in the way they use laws or programs. More precisely, an extraordinary act is passed to give the government the powers to fight an extraordinary enemy -- in these examples, the Mafia or al Qaeda. But governments will tend to extend this authority and apply it to ordinary events. How long, then, before the justification for tracking telephone calls is extended to finding child molesters, deadbeat dads and stolen car rings?
It is not that these things shouldn't be stopped. Rather, the issue is that Americans have decided that such crimes must be stopped within a rigorous system of due process. The United States was founded on the premise that governments can be as dangerous as criminals. The entire premise of the American system is that governments are necessary evils and that their powers must be circumscribed. Americans accept that some criminals will go free, but they still limit the authority of the state to intrude in their lives. There is a belief that if you give government an inch, it will take a mile -- all in the name of the public interest.
Now flip the analysis. Americans can live with child molesters, deadbeat dads and stolen car rings more readily than they can live with the dangers inherent in government power. But can one live with the threat from al Qaeda more readily than that from government power? That is the crucial question that must be answered. Does al Qaeda pose a threat that (a) cannot be managed within the structure of normal due process and (b) is so enormous that it requires an extension of government power? In the long run, is increased government power more or less dangerous than al Qaeda?
Due Process and Security Risks
We don't mean to be ironic when we say this is a tough call. If all that al Qaeda can do was what they achieved on 9/11, we might be tempted to say that society could live more readily with that threat than with the threat of government oppression. But there is no reason to believe that the totality of al Qaeda's capabilities and that of its spin-off groups was encapsulated in the 9/11 attacks. The possibility that al Qaeda might acquire and use weapons of mass destruction, including nuclear devices, cannot be completely dismissed. There is no question but that the organization would use such weapons if they could. The possibility of several American cities being devastated by nuclear attacks is conceivable -- and if there is only one chance in 100 of such an event, that is too much. The fact is that no one knows what the probabilities are.
Some of those who write to Stratfor argue that the Bush administration carried out the 9/11 attacks to justify increasing its power. But if the administration was powerful enough to carry out 9/11 without anyone finding out, then it hardly seems likely that it needed a justification for oppression. It could just oppress. The fact is that al Qaeda (which claims the attacks) carried out the attacks, and that attacks by other groups are possible. They might be nuclear attacks -- and stopping those is a social and moral imperative that might not be possible without a curtailment of liberty.
On both sides of the issue, it seems to us, there has developed a fundamental dishonesty. Civil libertarians demand that due process be respected in all instances, but without admitting openly the catastrophic risks they are willing to incur. Patrick Henry's famous statement, "Give me liberty or give me death," is a fundamental premise of American society. Civil libertarians demand liberty, but they deny that by doing so they are raising the possibility of death. They move past the tough part real fast.
The administration argues that government can be trusted with additional power. But one of the premises of American conservatism is that power corrupts, and absolute power corrupts absolutely. Conservatives believe that the state -- and particularly the federal government -- should never be trusted with power. Conservatives believe in "original sin," meaning they believe that any ruler not only is capable of corruption, but likely to be corrupted by power. The entire purpose of the American regime is to protect citizens from a state that is, by definition, untrustworthy. The Bush administration moves past this tough part real fast as well.
Tough Discussions
It is important to consider what the NSA's phone call monitoring program was intended to do. Al Qaeda's great skill has been using a very small number of men, allowing them to blend into a targeted country, and then suddenly bringing them together for an attack. Al Qaeda's command cell has always been difficult to penetrate; it consists of men who are related or who have known each other for years. They do not recruit new members into the original structure. Penetrating the organization is difficult. Moreover, the command cell may not know details of any particular operation in the field.
Human intelligence, in order to be effective, must be focused. As we say at Stratfor, we need a name, a picture and an address for the person who is likely to know the answer to an intelligence question. For al Qaeda's operations in the United States, we do not have any of this. The purpose of the data-mining program simply would have been to identify possible names and addresses so that a picture could be pieced together and an intelligence operation mounted. The program was designed to identify complex patterns of phone calls and link the information to things already known from other sources, in order to locate possible al Qaeda networks.
In order to avoid violating civil liberties, a warrant for monitoring phone calls would be needed. It is impossible to get a warrant for such a project, however, unless you want to get a warrant for every American. The purpose of a warrant is to investigate a known suspect. In this case, the government had no known suspect. Identifying a suspect is exactly what this was about. The NSA was looking for 10 or 20 needles in a haystack of almost 300 million. The data-mining program would not be a particularly effective program by itself -- it undoubtedly would have thrown out more false positives than anyone could follow up on. But in a conflict in which there are no good tools, this was a tool that had some utility. For all we know, a cell might have been located, or the program might never have been more than a waste of time.
The problem that critics of the program must address is simply this: If data mining of phone calls is objectionable, how would they suggest identifying al Qaeda operatives in the United States? We're open to suggestions. The problem that defenders of the program have is that they expect to be trusted to use the data wisely, and to discipline themselves not to use it in pursuit of embezzlers, pornographers or people who disagree with the president. We'd love to be convinced.
Contrary to what many people say, this is not an unprecedented situation in American history. During the Civil War -- another war that was unique and that was waged on American soil -- the North was torn by dissent. Pro-Confederate sentiment ran deep in the border states that remained within the Union, as well as in other states. The federal government, under Lincoln, suspended many liberties. Lincoln went far beyond Bush -- suspending the writ of habeas corpus, imposing martial law and so on. His legal basis for doing so was limited, but in his judgment, the survival of the United States required it.
Obviously, George W. Bush is no Lincoln. Of course, it must be remembered that during the Civil War, no one realized that Abraham Lincoln was a Lincoln. A lot of people in the North thought he was a Bush. Indeed, had the plans of some of his Cabinet members -- particularly his secretary of war -- gone forward after his assassination, Lincoln's suspension of civil rights would be remembered even less than it is now.
The trade-off between liberty and security must be debated. The question of how you judge when a national emergency has passed must be debated. The current discussion of NSA data mining provides a perfect arena for that discussion. We do not have a clear answer of how the debate should come out. Indeed, our view is that the outcome of the debate is less important than that the discussion be held and that a national consensus emerge. Americans can live with a lot of different outcomes. They cannot live with the current intellectual and political chaos.
Civil libertarians must not be allowed to get away with trivializing the physical danger that they are courting by insisting that the rules of due process be followed. Supporters of the administration must not be allowed to get away with trivializing the threat to liberty that prosecution of the war against al Qaeda entails. No consensus can possibly emerge when both sides of the debate are dishonest with each other and themselves.
This is a case in which the outcome of the debate will determine the course of the war. Leaks of information about secret projects to a newspaper is a symptom of the disease: a complete collapse of any consensus as to what this war is, what it means, what it risks, what it will cost and what price Americans are not willing to pay for it. A covert war cannot be won without disciplined covert operations. That is no longer possible in this environment. A serious consensus on the rules is now a national security requirement.
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