Most of the controversy surrounding the White House policy of warrantless telephone and e-mail eavesdropping has centered on whether President Bush has overstepped his authority under the Foreign Intelligence Surveillance Act, or FISA, which was created in 1978. The provisions of FISA allow the president to authorize electronic surveillance without a court order for up to a year provided it is only for foreign intelligence information, targeted against foreign powers or their agents, and that there is no substantial likelihood that the surveillance will involve any communications of a U.S. citizen. Alternatively, the government can obtain a court order to conduct surveillance from a secret FISA court. Moreover, the government has up to 72 hours after initiating surveillance to get FISA court approval, so there’s really no excuse for not getting a warrant.
Sadly, most of the debate has been over working within the guidelines of FISA and not about the constitutional and civil liberties issues of FISA itself. Sadder yet, a mid-January ABC News/Washington Post poll found that 51 percent of Americans thought it was acceptable to conduct warrantless monitoring of telephone calls and e-mails, 65 percent thought it was more important to investigate possible terrorist threats than to respect privacy, and 48 percent thought that President Bush would not go far enough to investigate terrorism because of concerns about constitutional rights. But beyond these important constitutional and civil liberties concerns, the administration’s domestic spying program also demonstrates the government’s unhealthy infatuation with technology as a solution to the problem of terrorism.
For example, consider the misguided program proposal Total Information Awareness, or TIA, which was developed under the auspices of the Defense Advanced Research Projects Agency (DARPA) and claimed "to protect U.S. citizens by detecting and defeating foreign terrorist threats before an attack" the same claim President Bush makes defending his use of warrantless wiretaps and e-mail monitoring.
The premise behind TIA was to build a database of public and private records to be analyzed for patterns indicative of terrorist activities. TIA essentially depended on the law of large numbers or what marketing companies call "data mining," which develops profiles of people who should be good customers for a particular product or service. A large pool of people who fit the profile is targeted, knowing that only a small fraction will actually be customers. TIA would use the same concept, but instead of potential customers, the profiles would be for aspiring terrorists. The problem is that, like commercial data mining, only a small fraction of the pool of people who fit the profile of a terrorist will, in fact, be actual terrorists.
A "back of the envelope" Bayesian statistical analysis demonstrates that TIA was bad math. Assume a U.S. population of 240 million adults (i.e., children are not would-be terrorist candidates). Assume we believe there are 5,000 terrorists lurking among us. Assume a 99.9 percent probability (i.e., near perfect and very highly unlikely) of correctly identifying a suspect as an actual terrorist that is, if you suspect someone is a terrorist, he is actually a terrorist. And assume a 99.9 percent probability (again, highly unlikely) of correctly identifying a suspect as an innocent person. The results would be:
- 244,299 people will be identified as suspected terrorists (and remember that this is with near-perfect accuracy of being able to correctly identify terrorists and innocent people).
- 239,995 innocent people will be misidentified as terrorists.
- The probability of finding a real terrorist is 2 percent.
Even if the number of people subjected to TIA was reduced, the results would not necessarily be any better. For example, assume we were looking for 19 hijackers among 3.6 million U.S. male Muslims. And assume the same near-perfect 99.9 percent accuracy as in the above example. How hard would it have been to find the hijackers and potentially avert 9/11?
- 3,619 people would have been identified as suspected terrorists.
- 3,600 innocent people would have been misidentified as terrorists.
- The probability of finding a real hijacker would have been about one-half of one percent.
Technology may give U.S. military forces superiority on the battlefield, but as TIA demonstrates we have to be careful about pinning our hopes on technology as the way to catch terrorists. In Tony Scott’s 2001 movie Spy Game, CIA case officer Nathan Muir (Robert Redford) says he is "old school," meaning he relies more on the tricks of spy tradecraft rather than being dependent on high-tech gadgetry. We would do well to follow that lead and focus more on human intelligence, i.e., spies on the ground inside al-Qaeda and the larger radical Islamic movement, rather than an over-reliance on technical intelligence-gathering.
In a strange twist, the United States actually has a model for penetrating al-Qaeda: John Walker Lindh. Born in Washington, D.C., and raised in affluent Marin County, California, Lindh was the "American Taliban" captured by U.S. soldiers in Afghanistan in November 2001. As shocking as it is that an American would be a soldier for the Taliban regime fighting against U.S. forces, even more remarkable is that someone like Lindh white and middle class would be taken in and trusted by radical Islamists. In 1997, Lindh converted to Islam when he was 16 years old. A year later, he traveled to Yemen for nine months. After returning home to California, Lindh went back to Yemen and then to Pakistan in 2000. There he enrolled in a madrassa and became interested in the Muslim fight in Kashmir. Lindh first joined the Harakat-ul Mujahedeen al-Almi (HUM) a militant Islamic group that operates in Kashmir but then decided he wanted to join the Taliban. But because he was not a native of Afghanistan and did not speak the local languages, Lindh was directed to the "Afghan Arabs," or al-Qaeda. Beginning in June 2001, Lindh spent seven weeks at an al-Qaeda training camp near Kandahar and even met with Osama bin Laden. So if someone described as a "sweet kid" from a "Birkenstock family" of Irish Catholic descent living in a community sometimes lampooned as a "hot tub haven" can join the ranks of al-Qaeda, certainly America’s intelligence agencies can also find a way but domestic spying is not the answer.
President Bush has vigorously defended his domestic spying program as "vital and critical" to "saving American lives" and protecting the country against another terrorist attack. But constitutional and civil liberties concerns notwithstanding monitoring phone calls and e-mails in the United States is a last-ditch defense, the equivalent of a Hail Mary pass. There is also the question of whether any of the conversations or e-mails being monitored are real or disinformation deliberately intended to mislead us (after all, Secretary of Defense Rumsfeld has admitted that the terrorists "jerk us around").
In his State of the Union address, President Bush claimed that "the terrorist surveillance program has helped prevent attacks" (but did not cite any specifics) and that "it remains essential to the security of America." But instead of defending the unconstitutional use of warrantless spying on Americans (the president claims such authority has been given to him by the Constitution and by statute, but only the latter is true), U.S. security would be better served if President Bush spent as much time and energy on a spy program to infiltrate al-Qaeda. Old school.
In touting the accomplishments of the US-VISIT (Visitor and Immigrant Status Indicator Technology) program which was originally promoted as "part of a comprehensive program to ensure that our borders remain open to visitors but closed to terrorists" the government claims that more than 600 criminals and illegal aliens have been apprehended as a result of the program but not one terrorist. Perhaps that’s why President Bush is so adamant about the need to spy on people in the United States.