Warrantless debate of intercepts of enemy communications

Phillip Bobbitt:

CONGRESS just passed, and President Bush hurriedly signed, a law that amends the legal framework for the electronic interception of various kinds of communication with foreign sources. Almost immediately, commentators concluded that the law was unnecessary, that it authorized a lawless and unprecedented expansion of presidential authority, and that Democrats in Congress cravenly accepted this White House initiative only for the basest political reasons. None of these widely broadcast conclusions are likely to be true.

All sides agree that some legislative fix is required because of changes in telecommunications technology. Where once it made sense to require warrants when one party to a foreign conversation was in America, this ceased to be the case when American routers became the transit points for foreign conversations that might or might not involve a person in the United States.

Once linear, analog, point-to-point communication has been replaced by the disaggregated packets of the Internet, two people talking to each other in Europe could find their conversations going through American switches. It also became difficult to determine the true origin of any communication that was routed through the United States. If a terrorism suspect in Pakistan is having conversations with someone on a computer with a New York Internet protocol address via a chat room run by an Internet service provider in London, where exactly is the intelligence being collected? If the answer is the United States simply because the servers are here, of what possible relevance could that be to the protection of the rights of Americans?

Amending the statute to focus on protecting American people rather than an American address would not have dealt with a larger and more profound problem. The change in the global communications infrastructure is both a driver and a consequence of a change in the nature of conflict. The end of the cold war was brought about in part because of technologies that empowered the individual and whetted people’s appetites for more control over their lives. These same developments also empower networks of terrorists, and the war they will soon be capable of waging has little in common with the industrial warfare of the 20th century. Accordingly, foreign intelligence tasks will also change.

It made sense to require that the person whose communications were intercepted be a spy when the whole point of the interception was to gather evidence to prosecute espionage. This makes much less sense when the purpose of the interception is to determine whether the person is in fact an agent at all. This sort of communications intercept tries to build from a known element in a terror network — a person, a telephone number, a photograph, a safe house, an electronic dead-drop — to some picture of the network itself. By crosshatching vast amounts of information, based on relatively few confirmed elements, it is possible to detect patterns that can expose the network through its benign operations and then focus on its more malignant schemes.

For this purpose, warrants are utterly beside the point. As Judge Richard Posner has put it, “once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets.” Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.

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Furthermore, there is an unstated assumption that warrantless surveillance is lawless surveillance. There is, however, judicial precedent for warrantless searches, even if you can’t tell this from the public debate. The president of the American Bar Association objected to the new statute by sarcastically observing, “The last time I checked, the Fourth Amendment is still in the Bill of Rights,” which he doubtless believed to be a withering salvo.

In fact, there are many instances in which warrantless surveillance has been held to be permissible under the Fourth Amendment. Searches in public schools require neither warrants nor a showing of probable cause....

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This op-ed is so shockingly intelligent that the real shocker is that it was published in the NY Times. Bobbitt is a professor of law and the director of the Center for National Security at Columbia University, was a National Security Council senior director from 1998 to 1999.

It is interesting that it took this long for someone who actually comprehends the purpose of the intercepts to break into print on the pages of the newspaper that is primarily responsible for screwing up the collection of intelligence on our enemies. Finally someone expresses the fact that the Fourth Amendment has nothing to do with intelligence gathering when you are not looking to prosecute a case. The fundamental problem is the lawfare mindset of the opponents of intelligence gathering. If they could wrap their minds around the fact that we are prosecuting a war and not a criminal case they could get out of the way of the war effort.