Intelligence officers who eavesdropped on thousands of Americans in overseas calls under authority from President Bush have dismissed nearly all of them as potential suspects after hearing nothing pertinent to a terrorist threat, according to accounts from current and former government officials and private-sector sources with knowledge of the technologies in use.
Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.
The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.
No matter what, the Bush administration will still tout the effectiveness of the program, even if it's publicly revealed that in four years of operation it's led to the capture of exactly zero terrorists. But you can be some conservative commentators will interpret this news as "See, it's not such a big deal! What's all the fuss about?" while critics of the program will retort "Then why go around FISA if this is all they needed?" However the mere fact that the program is ineffective could help determine it's legality:
The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable. Other officials said the disclosures might shift the terms of public debate, altering perceptions about the balance between privacy lost and security gained.
Valuable information remains valuable even if it comes from one in a thousand intercepts. But government officials and lawyers said the ratio of success to failure matters greatly when eavesdropping subjects are Americans or U.S. visitors with constitutional protection. The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn but to be "right for one out of every two guys at least." Those who devised the surveillance plan, the official said, "knew they could never meet that standard -- that's why they didn't go through" the court that supervises the Foreign Intelligence Surveillance Act, or FISA.
So far most of the controversy on this program has been over whether it's effective, and whether the program runs directly counter to the FISA of 1976. There are two constitutional issues at stake with this program; the first is a balance of power issue between the executive, the judiciary and the legislative branches. But the second involves an issue of individual rights, and what I think has been lacking so far is a serious debate over the protections of the 4th Amendment. In my opinion the greater problem with the NSA program is not that Bush may have broken the law, but that Bush may have authorized the violation of our constitutional rights under the 4th Amendment. The 4th Amendment requires a warrant for any search (or surveillance) or seizure absent some kind of exigent circumstances. The exigency of those circumstances is measured by probable cause-by the immediacy of the harm to be prevented-and not by the suspected status of the person being surveilled. Those exceptions to the warrant requirement, at least for the purposes of criminal law, have been laid out by the Supreme Court over the last one hundred years, but it's clear that the greater chance of immediate harm, the more likely it is that the government's rationale for spying on one of it's citizens is going to be upheld in a court of law. Unfortunately, probable cause does not exist when only a handful of thousands of those targeted are even suspected of having ties to terrorists. Based on what we know about the program, it drops out the "probable cause" requirement of the 4th Amendment and substitutes a "reasonable basis" test instead. But even were such a thing constitutionally permissible-and it's not-is there anything reasonable about surveillance that nets 10 suspects out of thousands surveilled?
The worst consequence in my opinion is the result of over-reaching yet again by the Bush administration. There are very real issues at stake here. I for one am bothered not by what they are up with this program, but by the fact that Bush decided that he should have this program in secret, unilaterally, with neither the input nor oversight of Congress or even any of the judges of the FISA court. I believe that the protections afforded us by 4th Amendment can be preserved even as the NSA tracks our emails, phone calls and faxes. But because Bush over-reached, it is entirely likely that were Congress to even consider passing legislation that would authorize something akin to what the administration is already up to, it would meet scrutiny and resistance that it would not have otherwise met had this program not been enacted in secret in the first place. Because Bush could not be bothered to ask us if we as a people were prepared to have our phone calls listened to and our emails read without a warrant, but with some independent checks and balances in place, then it's very likely that we will all lose out as a result.
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