HomeFeaturesDailyBriefingsRapidReconSpecial ReportsAbout Us
United States of America

Upgrading Intelligence Law

Failing to Approve New Surveillance Legislation Puts Us All at Risk

By Michael Tanji | July 30, 2007

US law as it pertains to electronic surveillance has not caught up with the times. Much of the communication taking place between terrorists and extremists is done online. A full treatment of how terrorists use the Internet and related technologies is beyond the scope of this article, but suffice it to say that whatever you might use the ‘Net for, terrorists do too, and then some.

Part of the problem is that Internet communications are not carried out in a single point-to-single point fashion; the whole point of having a widely dispersed network is that you can route traffic accordingly depending on load, priority and other factors. A message sent from Pakistan to the UK might traverse wires or wireless spectrum resident in several countries before reaching its final destination.

As a global hub of Internet activity the US is probably one of those nations, and as things currently stand our intelligence collection system cannot legally intercept those communications because of our old fashioned definition of what constitutes “spying on Americans.” A computer or Internet address is of course not a “person” but as things are viewed in the intelligence community, if there is a hint that an American might be at the keyboard of that computer (or bought it, or maintains it, or has it residing in his basement), it might as well be, hence the community’s request for new, clear and specific guidance on what they may be allowed to do expressly against bad actors, not neutral equipment or transnational mediums.

This has little if anything to do with the need to get a warrant to listen in on the conversations of actual Americans who may be supporting Islamic extremism or terrorism outright – no one is arguing that we should abridge citizens of their rights – but everything to do with executing extensive as well as expedient action against non-citizens that we know or suspect – usually via non-communications means – of being actual, bona fide evil doers. We can and should seek warrants for the former; the latter have no right to expect such treatment.

Notice that the intelligence community is asking for guidance on what they can do to track down and monitor terrorists. It is not asking for blanket power to monitor citizens or randomly scan traffic for potentially shady activity. This is not about legalizing a surveillance culture, it is focused and specific. The reasons for this are myriad but the most important is that, as a steady stream of reports have been pointing out, the NSA – the agency most likely to carry out these missions - is in danger of failing.

The NSA is running out of power and it can barely handle the missions it has now. Lobbying for the power to surveillance on a wholesale level would push them over the edge, and forwards the argument that agency leadership is not merely guilty of poor planning (what manager with half a wit doesn’t foresee that an increased demand for computing power is not also going to require an increased demand in electrical power?) but outright insanity. Intelligence agencies are loathe to say “no” to any request, even if they know they’ll never deliver an ideal product, but to think that they would set themselves up for failure on such a scale boggles even this skeptical mind.

That the community is asking for new and specific legal authority is also a sign to those that have labeled this the age of surveillance that it is anything but. If government surveillance efforts were as pervasive and intrusive as some would have us believe, there would be no need to go through the charade of asking for legal clearance. The political and administrative tools currently available to the intelligence community would suffice to preclude effective oversight of its activities. Even if the existence of such a program were to leak to the press, it is clear that Congress is not seriously inclined to do anything about real or perceived violations of intelligence law, or fallout from the domestic terrorist surveillance program, the SWIFT banking program and the FBI’s misuse and abuse of national security letters would have resulted in more than just show-hearings.

Congressional foot-dragging of these issues under the guise of protecting innocent citizens from the intrusions of Big Brother does nothing to actually protect innocents and does everything to put them at risk. By not giving our intelligence agencies the legal clearance they need to execute terrorist surveillance missions with the confidence that they are righteous with regards to the law, Congress is ensuring that already scandal-wary intelligence agencies do not bother aggressively pursuing all of the means at their disposal to find terrorists and disrupt their plots. Make no mistake: adherence to the law is something that every intelligence officer, regardless of agency (and I have worked at several, so I know about what I speak) has drilled into them from day one and every day thereafter. Those who serve in the nation’s silent services know that they are far more likely to wind up unemployed or imprisoned for violating intelligence law than they are to die at the hands of al-Qaeda.

Unless Congress thoroughly discusses and rapidly approves (in some format) new legal authority, there is a possibility that elements with the intelligence system will take it upon itself to act in a manner that they see as righteous despite the law. The release of the CIA’s “family jewels” report is a reminder of what such a time was like, and even the most strident supporter of the US intelligence community does not support a return to the bad old days.

Bringing intelligence law up to date is essential for tearing down the barriers that preclude aggressive, powerful, and legal pursuit of terrorists worldwide. Hindering that process pushes the odds of success in favor of our enemies.