MemeStreams | Civil Liberties and National Security

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.

Send questions or comments on this article to
analysis@stratfor.com.
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Civil Liberties and National Security