[Mb-civic] Spying Within the Law - David Ignatius - Washington Post Op-Ed

[William Swiggard]

Spying Within the Law

By David Ignatius
Friday, January 13, 2006; A21

The Bush administration is at a legal crossroads on surveillance: Will 
it seek to embed the National Security Agency's hunt for potential 
terrorists more firmly within the law? Or will the White House continue 
to tough it out -- and try to maintain the NSA program under an 
expansive theory of presidential power that many experts reject?

A month ago, when the story of the NSA's warrantless wiretapping broke, 
the White House seemed determined to maintain a defiant course. But 
thanks in part to a quiet revolt among administration lawyers and 
intelligence officers -- who believe that the surveillance program can't 
be sustained without a stronger legal and political base -- that 
unyielding stance may be easing.

President Bush said Wednesday, for example, that he would welcome a 
congressional investigation of his authority to order the NSA program, 
saying it would be "good for democracy." That was a sharp change in tone 
from the initial White House response, which was to demand an 
investigation into who had leaked the story to the New York Times.

The legal challenge will be to amend the 1978 Foreign Intelligence 
Surveillance Act, which created a special court to approve surveillance 
requests -- or to obtain a court ruling that FISA, as written, covers 
the NSA program. A sign that the administration may be seeking this sort 
of clearer legal mandate came Monday when Gen. Michael V. Hayden spent 
several hours briefing the FISA court on the program, according to a 
report that night on Fox News. Hayden, deputy director of national 
intelligence, who was running NSA when the warrantless surveillance 
began after Sept. 11, 2001, was accompanied by his successor at the NSA, 
Lt. Gen. Keith Alexander.

Lawyers and intelligence officers who knew of the super-secret NSA 
program suspected that its frail legal rationale would eventually 
collapse despite the administration's contention that it was sanctioned 
by the 2001 law authorizing the use of military force in Afghanistan. 
Indeed, Attorney General Alberto Gonzales said in a Dec. 19 briefing 
that the White House had talked with "certain members of Congress" about 
quietly amending FISA to explicitly permit the surveillance "and we were 
advised that that would be difficult, if not impossible."

The problem with FISA, experts say, is that it was created for a 
different world, with different communications technologies and 
different adversaries. The main enemy in 1978 was the Soviet Union, 
fixed and implacable. Global communications moved increasingly by 
satellite, and the transmissions could be overheard by the NSA's network 
of "big ear" collection stations. E-mail hadn't been invented, and the 
world wasn't linked by an interdependent network of fiber-optic cables.

Today America's enemy is al Qaeda, whose operatives move from place to 
place, phone to phone, e-mail address to e-mail address. And there have 
been fundamental changes in communications infrastructure: The vast 
majority of the world's broadband communications now passes at some 
point through switches in the United States. That's a huge boon for the 
NSA in monitoring potential enemies, but in this new world, it's much 
harder to distinguish between what's "foreign" and "domestic," between 
what's technically "in" but not necessarily "of" the United States.

To firmly set the NSA program within the law, Congress and the courts 
will have to think carefully about what's known in the signals 
intelligence world as "meta-data." These are the tags that identify the 
basic facts of a communication -- time, date, to, from -- but not its 
content. According to the Times and to other published reports, this 
routing information has been at the core of the NSA's new program. The 
agency has used sophisticated algorithms to analyze patterns of 
communication so that it can focus on people who may be linked to al 
Qaeda and then, where appropriate, target its communications through 
FISA warrants or other procedures.

The tricky legal question is whether a different privacy standard should 
apply to the meta-data that overlay the communication itself. The 
Supreme Court held in 1979, in Smith v. Maryland , that installing a 
device known as a "pen register," which records numbers dialed from a 
phone, was not a "search" within the meaning of the Fourth Amendment, so 
no warrant was required. Congress later set a higher standard protecting 
the privacy of these pen registers, including those used in FISA 
surveillance. These issues would return in any debate about amending FISA.

An abiding theme of American history is the tension between our 
constitutional freedoms and our national security in wartime. The 
country is beginning a new chapter in that debate, and the challenge 
will be the same as always: to use tools that can enhance security, but 
in a way that does not unduly diminish liberty.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/12/AR2006011201520.html
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