Civil Liberties and National Security

By George Friedman

USA Today published a story last week
stating that U.S. telephone companies (Qwest excepted) had been handing over
to the National Security Agency (NSA) logs of phone calls made by American
citizens. This has, as one might expect, generated a fair bit of controversy
-- with opinions ranging from "It's not only legal but a great idea" to "This
proves that Bush arranged 9/11 so he could create a police state." A fine
time is being had by all. Therefore, it would seem appropriate to pause and
consider the matter.

Let's begin with an obvious question: How in
God's name did USA Today find out about a program that had to have been
among the most closely held secrets in the intelligence community -- not
only because it would be embarrassing if discovered, but also because the
entire program could work only if no one knew it was under way? No criticism
of USA Today, but we would assume that the newspaper wasn't running covert
operations against the NSA. Therefore, someone gave them the story, and
whoever gave them the story had to be cleared to know about it. That means
that someone with a high security clearance leaked an NSA
secret.

Americans have become so numbed to leaks at this point that
no one really has discussed the implications of what we are seeing: The
intelligence community is hemorrhaging classified information. It's possible
that this leak came from one of the few congressmen or senators or staffers
on oversight committees who had been briefed on this material -- but either
way, we are seeing an extraordinary breakdown among those with access to
classified material.

The reason for this latest disclosure is
obviously the nomination of Gen. Michael Hayden to be the head of the CIA.
Before his appointment as deputy director of national intelligence, Hayden
had been the head of the NSA, where he oversaw the collection and
data-mining project involving private phone calls. Hayden's nomination to
the CIA has come under heavy criticism from Democrats and Republicans, who
argue that he is an inappropriate choice for director. The release of the
data-mining story to USA Today obviously was intended as a means of shooting
down his nomination -- which it might. But what is important here is not the
fate of Hayden, but the fact that the Bush administration clearly has lost
all control of the intelligence community -- extended to include
congressional oversight processes. That is not a trivial point.

At
the heart of the argument is not the current breakdown in Washington, but
the more significant question of why the NSA was running such a collection
program and whether the program represented a serious threat to liberty. The
standard debate is divided into two schools: those who regard the threat to
liberty as trivial when compared to the security it provides, and those who
regard the security it provides as trivial when compared to the threat to
liberty. In this, each side is being dishonest. The real answer, we believe,
is that the program does substantially improve security, and that it is a
clear threat to liberty. People talk about hard choices all the time; with
this program, Americans actually are facing one.

A Problem of
Governments

Let's begin with the liberty question. There is no
way that a government program designed to track phone calls made by
Americans is not a threat to liberty. We are not lawyers, and we are sure a
good lawyer could make the argument either way. But whatever the law says,
liberty means "my right to do what I want, within the law and due process,
without the government having any knowledge of it." This program violates
that concept.

The core problem is that it is never clear what the
government will do with the data it collects.

Consider two examples,
involving two presidential administrations.

In 1970, Congress passed
legislation called the Racketeer-Influenced and Corrupt Organizations (RICO)
Act that was designed explicitly to break organized crime groups. The special
legislation was needed because organized crime groups were skilled at making
more conventional prosecutions difficult. The Clinton administration used
the RICO Act against anti-abortion activists. From a legal point of view,
this was effective, but no one had ever envisioned the law being used this
way when it was drafted. The government was taking the law to a place where
its framers had never intended it to go.

Following 9/11, Congress
passed a range of anti-terrorism laws that included the PATRIOT Act. The
purpose of this was to stop al Qaeda, an organization that had killed
thousands of people and was thought to be capable of plotting a nuclear
attack. Under the same laws, the Bush administration has been monitoring a
range of American left-wing groups -- some of which well might have
committed acts of violence, but none of which come close to posing the same
level of threat as al Qaeda. In some technical sense, using anti-terrorism
laws against animal-rights activists might be legitimate, but the framers of
the law did not envision this extension.

What we are describing here
is neither a Democratic nor a Republican disease. It is a problem of
governments. They are not particularly trustworthy in the way they use laws
or programs. More precisely, an extraordinary act is passed to give the
government the powers to fight an extraordinary enemy -- in these examples,
the Mafia or al Qaeda. But governments will tend to extend this authority
and apply it to ordinary events. How long, then, before the justification
for tracking telephone calls is extended to finding child molesters,
deadbeat dads and stolen car rings?

It is not that these things
shouldn't be stopped. Rather, the issue is that Americans have decided that
such crimes must be stopped within a rigorous system of due process. The
United States was founded on the premise that governments can be as
dangerous as criminals. The entire premise of the American system is that
governments are necessary evils and that their powers must be circumscribed.
Americans accept that some criminals will go free, but they still limit the
authority of the state to intrude in their lives. There is a belief that if
you give government an inch, it will take a mile -- all in the name of the
public interest.

Now flip the analysis. Americans can live with child
molesters, deadbeat dads and stolen car rings more readily than they can live
with the dangers inherent in government power. But can one live with the
threat from al Qaeda more readily than that from government power? That is
the crucial question that must be answered. Does al Qaeda pose a threat that
(a) cannot be managed within the structure of normal due process and (b) is
so enormous that it requires an extension of government power? In the long
run, is increased government power more or less dangerous than al Qaeda?


Due Process and Security Risks

We don't mean to be
ironic when we say this is a tough call. If all that al Qaeda can do was
what they achieved on 9/11, we might be tempted to say that society could
live more readily with that threat than with the threat of government
oppression. But there is no reason to believe that the totality of al
Qaeda's capabilities and that of its spin-off groups was encapsulated in the
9/11 attacks. The possibility that al Qaeda might acquire and use weapons of
mass destruction, including nuclear devices, cannot be completely dismissed.
There is no question but that the organization would use such weapons if they
could. The possibility of several American cities being devastated by nuclear
attacks is conceivable -- and if there is only one chance in 100 of such an
event, that is too much. The fact is that no one knows what the
probabilities are.

Some of those who write to Stratfor argue that
the Bush administration carried out the 9/11 attacks to justify increasing
its power. But if the administration was powerful enough to carry out 9/11
without anyone finding out, then it hardly seems likely that it needed a
justification for oppression. It could just oppress. The fact is that al
Qaeda (which claims the attacks) carried out the attacks, and that attacks
by other groups are possible. They might be nuclear attacks -- and stopping
those is a social and moral imperative that might not be possible without a
curtailment of liberty.

On both sides of the issue, it seems to us,
there has developed a fundamental dishonesty. Civil libertarians demand that
due process be respected in all instances, but without admitting openly the
catastrophic risks they are willing to incur. Patrick Henry's famous
statement, "Give me liberty or give me death," is a fundamental premise of
American society. Civil libertarians demand liberty, but they deny that by
doing so they are raising the possibility of death. They move past the tough
part real fast.

The administration argues that government can be
trusted with additional power. But one of the premises of American
conservatism is that power corrupts, and absolute power corrupts absolutely.
Conservatives believe that the state -- and particularly the federal
government -- should never be trusted with power. Conservatives believe in
"original sin," meaning they believe that any ruler not only is capable of
corruption, but likely to be corrupted by power. The entire purpose of the
American regime is to protect citizens from a state that is, by definition,
untrustworthy. The Bush administration moves past this tough part real fast
as well.

Tough Discussions

It is important to consider
what the NSA's phone call monitoring program was intended to do. Al Qaeda's
great skill has been using a very small number of men, allowing them to
blend into a targeted country, and then suddenly bringing them together for
an attack. Al Qaeda's command cell has always been difficult to penetrate;
it consists of men who are related or who have known each other for years.
They do not recruit new members into the original structure. Penetrating the
organization is difficult. Moreover, the command cell may not know details of
any particular operation in the field.

Human intelligence, in order
to be effective, must be focused. As we say at Stratfor, we need a name, a
picture and an address for the person who is likely to know the answer to an
intelligence question. For al Qaeda's operations in the United States, we do
not have any of this. The purpose of the data-mining program simply would
have been to identify possible names and addresses so that a picture could
be pieced together and an intelligence operation mounted. The program was
designed to identify complex patterns of phone calls and link the
information to things already known from other sources, in order to locate
possible al Qaeda networks.

In order to avoid violating civil
liberties, a warrant for monitoring phone calls would be needed. It is
impossible to get a warrant for such a project, however, unless you want to
get a warrant for every American. The purpose of a warrant is to investigate
a known suspect. In this case, the government had no known suspect.
Identifying a suspect is exactly what this was about. The NSA was looking
for 10 or 20 needles in a haystack of almost 300 million. The data-mining
program would not be a particularly effective program by itself -- it
undoubtedly would have thrown out more false positives than anyone could
follow up on. But in a conflict in which there are no good tools, this was a
tool that had some utility. For all we know, a cell might have been located,
or the program might never have been more than a waste of time.

The
problem that critics of the program must address is simply this: If data
mining of phone calls is objectionable, how would they suggest identifying
al Qaeda operatives in the United States? We're open to suggestions. The
problem that defenders of the program have is that they expect to be trusted
to use the data wisely, and to discipline themselves not to use it in pursuit
of embezzlers, pornographers or people who disagree with the president. We'd
love to be convinced.

Contrary to what many people say, this is not
an unprecedented situation in American history. During the Civil War --
another war that was unique and that was waged on American soil -- the North
was torn by dissent. Pro-Confederate sentiment ran deep in the border states
that remained within the Union, as well as in other states. The federal
government, under Lincoln, suspended many liberties. Lincoln went far beyond
Bush -- suspending the writ of habeas corpus, imposing martial law and so on.
His legal basis for doing so was limited, but in his judgment, the survival
of the United States required it.

Obviously, George W. Bush is no
Lincoln. Of course, it must be remembered that during the Civil War, no one
realized that Abraham Lincoln was a Lincoln. A lot of people in the North
thought he was a Bush. Indeed, had the plans of some of his Cabinet members
-- particularly his secretary of war -- gone forward after his
assassination, Lincoln's suspension of civil rights would be remembered even
less than it is now.

The trade-off between liberty and security must
be debated. The question of how you judge when a national emergency has
passed must be debated. The current discussion of NSA data mining provides a
perfect arena for that discussion. We do not have a clear answer of how the
debate should come out. Indeed, our view is that the outcome of the debate
is less important than that the discussion be held and that a national
consensus emerge. Americans can live with a lot of different outcomes. They
cannot live with the current intellectual and political chaos.

Civil
libertarians must not be allowed to get away with trivializing the physical
danger that they are courting by insisting that the rules of due process be
followed. Supporters of the administration must not be allowed to get away
with trivializing the threat to liberty that prosecution of the war against
al Qaeda entails. No consensus can possibly emerge when both sides of the
debate are dishonest with each other and themselves.

This is a case
in which the outcome of the debate will determine the course of the war.
Leaks of information about secret projects to a newspaper is a symptom of
the disease: a complete collapse of any consensus as to what this war is,
what it means, what it risks, what it will cost and what price Americans are
not willing to pay for it. A covert war cannot be won without disciplined
covert operations. That is no longer possible in this environment. A serious
consensus on the rules is now a national security requirement.

Send questions or comments on this article to
analysis@stratfor.com.