Gen. Michael Hayden is going to get an early Memorial Day
BBQ-ing on Thursday. The CIA director-nominee will appear before
the Senate Select Committee on Intelligence, and the senators are
sure to go ballistic over the National Security Agency's
telephone-calling-record database. Yet, despite the nonsense that
the politically motivated mainstream media and the left have been
spouting on the NSA program, this critical counterterrorism effort
isn't intrusive, illegal - or unnecessary.
Let's start by dispelling some of the more prominent myths
perpetuated about the program:
It's intrusive: Wrong. The billions of
telephone-calling records voluntarily provided to the NSA by
AT&T, Verizon and BellSouth are anonymous. This means they're
just phone numbers - the caller's names/addresses aren't identified
in the calling record.
Moreover, these records include nothing on any of the substance of
the phone calls - just the number, the date and duration. This
doesn't mean that your phone calls are being monitored by the NSA -
or anyone else. That requires a court order.
It's illegal: Wrong. It's perfectly legal for the
government to receive this information. These are considered mere
business records. In fact, the Supreme Court has explicitly ruled
that the Fourth Amendment (i.e., the right against unreasonable
search and seizure) doesn't include phone-calling records.
In Smith v. Maryland (1979), the court found that the Fourth
Amendment doesn't protect calling records because when you
voluntarily use the phone, you voluntarily share that info with
every telephone company that handles the call along the way to its
destination.
It's unnecessary: Wrong. The program is focused on
terrorists, especially the al Qaeda threat. While we've made
progress in neutralizing al Qaeda, the terrorist group remains
dangerous and deadly - and has promised to strike here at home
again.
In fact, the decentralization of al Qaeda has made it a more
unpredictable (i.e., challenging) target for homeland security. And
the bombings in London last July remind us of the increased threat
arising from homegrown terrorists.
The most glaring absence in all the uproar is a good example of how
this information might be used to prevent a terrorist act right
here in the United States.
Suppose the FBI identifies - today - a terrorist suspect (e.g.,
Terrorist A) located right here in the United States from
information received from a foreign intelligence service after a
raid on an al Qaeda safe house abroad.
Beyond taking immediate steps to prevent a terrorist attack, one of
the first questions that law enforcement is going to want to answer
is whether Terrorist A is working alone, or as part of a cell or
larger group operating here.
There are a couple of ways of determining this. One method is by
looking at how - and with whom - Terrorist A communicates. This is
often referred to as "communications-network analysis."
But, while you might be able to identify with whom Terrorist A is
communicating by monitoring his phone calls once you've determined
his terrorist ties, you still don't know with whom else he
communicated with in the past.
That's why the NSA wanted the calling-record database. With it,
law-enforcement agents can determine the phone numbers of Terrorist
A's previous contacts. Equally importantly, they can find out with
whom else Terrorist A's contacts have talked with.
Through analysis of Terrorist A's (and associates') calling
patterns using NSA's database and supercomputers, officials can
develop a schematic of the terrorist organization's structure,
members - even chain of command.
In other words, they can connect the dots.
No telling what a difference such a counterterrorism program might
have had in preventing 9/11, if such network analysis had been done
on the communications patterns of the al Qaeda hijackers.
Sad to say, we live in a time when we should no longer be shocked
at the lengths the mainstream media, or other irresponsible leakers
of classified information, will go to advance their anti-Bush
political agenda - even if it means harming our national
security.
We need to remind ourselves that it isn't by chance that we haven't
had a terrorist attack here in the United States in almost five
years. It's because we've established a significant
counterterrorism program both at home and abroad, including this
NSA effort.
Peter
Brookes is a Heritage Foundation senior fellow and
author of the book "A Devil's Triangle: Terrorism, WMD and
Rogue States."
First appeared in the New York Post Online Edition