The National Security Agency’s surveillance hasn’t changed. Washington has.
By Mike Pompeo and David B. Rivkin Jr.
Former National Security Agency contractor Edward Snowden’s leaks have subjected the NSA’s surveillance programs to unprecedented attack, raising the possibility that Congress will not be able to pass the 2014 Intelligence Authorization bill needed to provide congressional guidance on a host of crucial national-security issues. It would be lamentable if the entirely legal and invaluable NSA surveillance program became more of a political football than it already is.
Some proposals would hamstring the NSA’s ability to obtain, store and analyze information, while forcing disclosures of now-classified operations. Balancing the intelligence community’s need for secrecy with the public’s appetite for disclosure is always difficult in a democracy. But the NSA’s programs have from the start been tailored to balance constitutional requirements, statutory authorizations and operational needs. What’s different today is not how we collect intelligence, but the new and extreme legal and policy arguments against doing so.
For more than a decade, pursuant to orders issued by the Foreign Intelligence Surveillance Court, the NSA has acquired and stored bulk telephone metadata involving both Americans and foreigners. Federal law also authorizes the NSA to collect the content of foreign communications and—only when authorized by the FISC following a showing of probable cause—the communications of specific Americans. Every member of Congress has had access to these programs’ inner workings and the relevant congressional committees have been consistently and fully briefed.
Critics claim that bulk-data acquisition violates U.S. citizens’ Fourth Amendment right against “unreasonable searches and seizures.” But telephone metadata is generated by communications companies, and it belongs to them, not to their customers. Its acquisition by the government therefore doesn’t implicate the Fourth Amendment interests of individual Americans. Even if it did, the judicially recognized “special needs” doctrine would still allow collection.
Others claim that the Fourth Amendment safeguards a vague interest in “informational privacy,” rather than a citizen’s right, as the amendment reads, “to be secure in their persons, houses, papers, and effects.” But that is clearly at odds with the Fourth Amendment’s language and cases construing it, including most recently the 2011 Supreme Court case of NASA v. Nelson.
Critics say these programs are unauthorized by law. This is patently false. President George W. Bush commenced bulk metadata collection after 9/11, relying on his constitutional authority as commander in chief. Congress expressly gave the president authority to continue collecting bulk metadata in 2006.
Having acquired bulk data, the NSA doesn’t search it at will. Instead, pursuant to FISC order, the NSA conducts targeted searches triggered by a “reasonable articulable suspicion” that terrorist activities are taking place and that the searches would help uncover them. Specifically, the NSA is required to show that a person, using a phone number contained on the list of numbers associated with foreign terrorist entities, has initiated a call into, or received a call from, the U.S.
Claims that the NSA is wrong to spy on foreign citizens and leaders are both specious and dangerous. Such spying violates neither customary international law nor any treaty. It has been an integral part of statecraft throughout history, whether targeted at hostile, neutral or allied states. American citizen-spies were pivotal in helping George Washington defeat the British in the Revolutionary War.
Critics also don’t seem to have considered precisely how one could limit foreign intelligence collections, in law or as policy. The notion that NSA operations should be subject to oversight by foreign legislatures or foreign courts is risible. If the U.S. were to give up the surveillance of one set of foreign leaders, this is certain to prompt other leaders to clamor for a similar immunity.
Affording such immunity to foreign leaders would only intensify the demands of their citizens for a similar exemption. The scheme reportedly being considered by the Obama administration, which would accord foreigners privacy protections similar to those enjoyed by U.S. citizens, would cripple our intelligence collection. The bottom line is that the U.S. should reject all calls to circumscribe its foreign surveillance.
NSA surveillance is all the more vital when other intelligence collection channels have dried up. The U.S. has effectively ceased interrogation of captured enemy combatants. Our ability either to suborn enemy operatives and run them in place, like we did with our Cold War adversaries, or plant agents within the terrorist ranks, is poor to nonexistent. And we should not forget that, even today, the U.S. remains at war with a widely dispersed terrorist enemy that relies on modern communications technologies to carry out its plots.
Skeptics, who clamor for evidence that specific terrorist plots were uncovered entirely through NSA activities, are asking the wrong question. Surveillance is one tool among many and multiplies the effectiveness of other antiterrorism measures. The very existence of NSA data collection complicates, burdens and renders less efficient the performance of terrorist cells.
While privacy zealots offer platitudes about how there are supposedly some better, more precise and less intrusive ways of conducting surveillance, they have never explained what those approaches might be. An unprecedented amount of information about NSA surveillance operations has been either leaked or declassified of late, but there has been zero evidence of systemic abuse—only a handful of technical mistakes, misunderstandings and misconduct by individual employees who have been properly disciplined.
Trusting the government across the board is inconsistent with our constitutional and political traditions. That is why the Constitution creates a system of checks and balances. The Constitution also makes it the government’s core responsibility to provide for the common defense. Doing away with or weakening NSA surveillance programs would eliminate one of the country’s few remaining effective and constitutional tools for keeping Americans safe.
Mr. Pompeo, a Republican from Kansas, is a member of the House Permanent Select Committee on Intelligence. Mr. Rivkin is a partner at Baker Hostetler LLP and served in the Justice Department and the White House Counsel’s Office during Reagan and George H.W. Bush administrations.