Tuesday, January 17, 2006

Domestic Surveillance and "Necessity"

When legal arguments fail, "necessity" is often the justification of those who are determined to act with or without the law. As Oliver Cromwell put it, "Necessity hath no law." But, as William Pitt (the younger) recognized, because it is unbound by law, necessity is also "the argument of tyrants."

Most of the actions taken by the Bush Administration that have most seriously damaged the reputation of the United States as a nation committed to the defense of human rights and individual freedoms have, at one time or another (and often repeatedly), been presented as being necessary to the defense of Americans. Like all consequentialist claims, these are very difficult claims to assess, particularly when an extraordinary degree of secrecy--extraordinary for a democracy, at least--is also presented as a necessity in the "war on terrorism."

Today's New York Times offers a bit of evidence on which we can begin to assess the argument that the Bush Administration's domestic surveillance program--the one that evades both the Fourth Amendment and FISA--is necessary. Consider this extended excerpt:

In the anxious months after the Sept. 11 attacks, the National Security Agency began sending a steady stream of telephone numbers, e-mail addresses and names to the F.B.I. in search of terrorists. The stream soon became a flood, requiring hundreds of agents to check out thousands of tips a month.

But virtually all of them, current and former officials say, led to dead ends or innocent Americans.

F.B.I. officials repeatedly complained to the spy agency that the unfiltered information was swamping investigators. The spy agency was collecting much of the data by eavesdropping on some Americans' international communications and conducting computer searches of phone and Internet traffic. Some F.B.I. officials and prosecutors also thought the checks, which sometimes involved interviews by agents, were pointless intrusions on Americans' privacy.

As the bureau was running down those leads, its director, Robert S. Mueller III, raised concerns about the legal rationale for a program of eavesdropping without warrants, one government official said. Mr. Mueller asked senior administration officials about "whether the program had a proper legal foundation," but deferred to Justice Department legal opinions, the official said.

President Bush has characterized the eavesdropping program as a "vital tool" against terrorism; Vice President Dick Cheney has said it has saved "thousands of lives."

But the results of the program look very different to some officials charged with tracking terrorism in the United States. More than a dozen current and former law enforcement and counterterrorism officials, including some in the small circle who knew of the secret program and how it played out at the F.B.I., said the torrent of tips led them to few potential terrorists inside the country they did not know of from other sources and diverted agents from counterterrorism work they viewed as more productive.

"We'd chase a number, find it's a schoolteacher with no indication they've ever been involved in international terrorism--case closed," said one former F.B.I. official, who was aware of the program and the data it generated for the bureau. "After you get a thousand numbers and not one is turning up anything, you get some frustration."

Journalists, no matter how resourceful and thorough, will never be able to offer the public a definitive assessment of the efficacy of an operation like this one. What they can do (and, in this case, have done) is to raise questions about the veracity of an important claim being presented to the public. The next step is for Congress to use its oversight function to get to the bottom of the story in a way that journalists, being unable to compel testimony, cannot.

Next month, as the Senate Judiciary Committee takes up the constitutionality of the Bush Administration's domestic surveillance program, Congress also needs to begin asking questions, behind closed doors if necessary, about the claim that the program has saved "thousands of lives."