By John C. Wohlstetter
January 31, 2008
The assassination of former Pakistani Prime Minister Benazir Bhutto has brought foreign policy and security issues to the forefront, as America prepares to elect a president. Homeland security is part of the seamless web that links actions abroad to consequences at home.
Above all, fears that a nuclear device will be detonated on American soil have been aroused anew by the plausible prospect of political disintegration in the world's only nuclear-armed Islamic nation.
For the last two years, a national debate has raged as to what communications monitoring the government may legitimately conduct in its effort to protect Americans from terrorist attacks. Begun shortly after September 11, 2001, disclosed to bipartisan congressional leadership from the outset, with periodic review by the Justice Department, the Telecommunications Surveillance Program nonetheless came under heavy fire from privacy advocates when its existence became publicly known.
The program relies mostly on sophisticated analysis of calling patterns, with fewer than 1 in a million calls actually examined for content. Commercial monitoring of calling patterns is already routine to detect credit card and phone fraud, and is accepted by most consumers.
Last Dec. 11, the Foreign Intelligence Surveillance Court dismissed a petition by the American Civil Liberties Union seeking to examine unclassified government documents pertaining to the program. Judge John D. Bates noted "an unquestioned tradition of secrecy, based on the vitally important need to protect national security." He held that the court lacked authority to review executive branch classification decisions, and that the ACLU has neither a common law nor a First Amendment right to gain access to the requested documents.
Judge Bates cited the risks of compromising sources and methods: enabling adversaries to evade surveillance, misleading investigators, chilling potential sources and damaging relations with foreign governments. "All these potential harms are real and significant, and, quite frankly, beyond debate," he added.
Late last year the Senate put off reauthorizing the Protect America Act, enacted last August for a six-month term that expires tomorrow, that would allow the government to continue to monitor communications for counter-terror purposes. A major sticking point is inability to agree on including immunity for telecommunications carriers from lawsuits arising out of their past cooperation with government requests to monitor traffic.
Already, some 40 civil lawsuits are pending. The House intends to pass a 30-day extension of the 2007 law, while the Senate debates extension length proposals. President Bush rightly insists on a permanent extension, which any future Congress can amend.
Four senators on the Senate Select Committee on Intelligence, noting that taxpayer indemnification would not compensate companies for loss of reputation and from investor disfavor, asked: "[I]f we allow these companies to suffer for helping us in the war on terror, could we really blame a company for not wanting to help the next time it is called upon to assist in defending our country?"
Were companies to decline to cooperate with the government, according to former National Security Agency chief Adm. Bobby R. Inman, that "would have a huge impact on both the timeliness and availability of critical intelligence." The surveillance program has already yielded information that helped thwart terror attacks inside the United States, including a plot to import portable missile launchers, that could have been used to help shoot down civilian airliners, and another plot to cut the suspension cables on the Brooklyn Bridge.
Standard telephone company practice, going back decades in criminal investigations, holds that on being served with a request from the government, it is visually scanned by company officials for facial validity, to determine if it looks like a proper legal document. Absent an obvious facial defect, the document is presumed genuine and lawful. Given the volume of such requests — many thousands per year — imposing any burden on companies beyond a facial scan to ascertain probable authenticity would lead them to decline such requests, thus forcing the government to go to court every time. The expense of even a victorious legal defense, let lone the risk of unsympathetic jurors returning million-dollar verdicts, would cause companies to strenuously resist cooperating.
On September 11, 2001, terrorists turned our technology against us. We must not, after that, allow civil libertarians to turn us against our own technology, a critical asset in counterterror efforts to protect us from grievous harm. The brutal murder in Pakistan should remind voters that the 2008 campaign must focus on how seriously we take the threat of a homeland catastrophe involving weapons of mass destruction, and which candidate will use every legitimate security tool to protect America.
John C. Wohlstetter, a senior fellow at Discovery Institute, spent more than 22 years in the telephone industry. His work included communications law and national security. He is the author of "The Long War Ahead and the Short War Upon Us," due out this month, and of the issues blog, "Letter From The Capitol."