Time to Remove the Surveillance Blinders The terror threat is rising while Obama and Congress have moved to limit U.S. intelligence capabilities. By Michael B. Mukasey And Jamil N. Jaffer
http://www.wsj.com/articles/time-to-remove-the-surveillance-blinders-1448325763
As we learn more about the Islamic State-backed terror attacks in Paris on Nov. 13, and about other threats like the one that caused Brussels to go on highest alert over the weekend, it has become increasingly clear: America and its allies have failed to gather and process the intelligence necessary to protect their citizens.
It is unsurprising that Americans are worried about the threat at home. Islamic State, or ISIS, has long sought to conduct attacks in the U.S. by recruiting Americans to its cause through various social media outlets, from Twitter to YouTube. In the past week alone, ISIS has claimed that it has operatives in the U.S. ready to take action, including specifically against New York City and Washington, D.C.
Some of this is undoubtedly classic terrorist rhetoric, but the Paris attacks show that ISIS has both the capacity and the desire to inflict mass casualties on Western countries. Al Qaeda is hardly out of the picture; its allies in Mali claimed responsibility for the bloody rampage Friday in Bamako at a Radisson hotel favored by Western visitors, leaving 27 dead.
Plainly, the terrorism threat environment is bad and getting worse. This is no time to be paring back America’s intelligence-gathering capabilities. Yet that is precisely the course on which Congress and President Obama have put us, with at least some cooperation from the judicial branch.
The president seems comfortable, even in light of recent events, leaving in place the significant restrictions on the collection of intelligence on foreigners that he imposed in the aftermath of the illegal Edward Snowden surveillance disclosures two years ago.
Congress has been complicit in these efforts. Less than six months ago, libertarian Republicans and liberal Democrats joined hands with the White House to impose fresh limits on the collection of telephone and other metadata—which includes no content but is limited to calling and called numbers, date, time and length of call or their equivalents. The move was an effort to mollify privacy advocates who claimed—falsely—that this program was a surveillance dragnet that undermined Americans’ privacy and civil liberties.
In fact, courts have long held that the collection of metadata is not subject to the Fourth Amendment’s limitations if an individual voluntarily shares this data with third parties in order to route communications. A district court in Washington has taken a somewhat different view, and a New York appellate court has suggested that Congress must clearly authorize such collection. But until the Supreme Court holds otherwise, the general rule is that it is wholly appropriate to collect such data.
Whatever one might think of the views of the federal courts on these questions, the notion that U.S. intelligence agencies might need basic information on whether terrorism suspects overseas have been dialing phone numbers or emailing people in the U.S. seems entirely reasonable.
The entire purpose of this program when it was initiated by the Bush administration, continued by the Obama administration, and approved more than 40 times by federal judges on the Foreign Intelligence Surveillance Court, was to provide an early-warning system for potential terrorist activity so that the government can detect whether a foreign terrorist is in communication with someone in the U.S. Only then could the government seek court permission to monitor the full content of these communications.
In considering how best to balance privacy and civil liberties with the need to protect the nation against terrorism, it is perverse to discourage the government from using an approach that limits the collection of email and phone-call content and instead simply seeks to connect the dots of terrorists’ communications.
Yet Congress and President Obama have willingly hobbled the program. It is time to reconsider, given how dramatically circumstances have changed. The leadership in Washington has the responsibility to take every reasonable step to protect the American people.
So what might Congress do in the next weeks and months to foster better intelligence-gathering that will increase security? The following three steps would be a good start:
• Restore the metadata programs to their pre-Snowden status so they can provide a solid early-warning system based on data about who is communicating with whom (content would still be protected).
• Encourage—or require, if need be—the president to restore the full collection of national-security-related intelligence overseas.
• Make permanent a variety of essential post-9/11 authorities intended to protect the nation: the “roving” wiretap authority to account for replaceable cellphones; the “lone wolf” authority to target those terrorists inspired by—but without a direct connection to—ISIS or other groups; and the FISA Section 702 programs that authorize collection of intelligence against foreigners located outside the U.S., who have no legitimate claim to protection under the Constitution.
There is no guarantee that even if these measures are enacted, the U.S. won’t suffer a domestic “setback,” as President Obama daintily described the Paris bloodbath. The best intelligence tools are of only limited value unless the country is led by a president who would direct their use effectively. President Obama shows little sign of warming to such a task. The least Congress can do is make sure that the tools are available to his successor.
Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge (1988-2006). Mr. Jaffer is a former associate counsel to President George W. Bush and a former counsel to the assistant attorney general in the national security division of the Justice Department.
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