The revelation that the Obama administration authorized the collection of vast amounts of telephone records has the media and experts scrambling to understand the true nature of the program’s intrusion into the privacy of Americans. Earlier today, in an attempt to calm the “hype,” President Obama made his first comments on the surveillance controversy. “Nobody is listening to your calls,” he sought to assure the American people, pointing out that the program sweeps up so-called “metadata,” the time, numbers, and duration of calls rather than the content of communications. But following news of the Justice Department’s spying on reporters to catch leakers, Americans can be forgiven if they are reluctant to simply take the president at his word.
So how to assess what if any real threat the metadata program poses to our civil liberties? One way is to look at precisely why dissidents within the Bush administration opposed the Terrorist Surveillance Program. The Obama initiative appears to be an outgrowth of the TSP—an effort to warehouse massive amounts of communications data to detect patterns and links that might indicate terrorist activity—with at least one significant difference: under the TSP, which began shortly after September 11, the data was collected without any court authorization.
That is until 2004, when then-Deputy Attorney General James Comey—coincidentally, Obama’s expected nominee for FBI director—refused to reauthorize the wiretapping program. Comey and a number of other top officials concluded that the intelligence effort violated the 1978 Foreign Intelligence Surveillance Act (FISA), which requires judicial approval for domestic spying. The standoff led to the famous hospital room scene in which Comey thwarted two top Bush aides from pressuring an ill Attorney General John Ashcroft to reauthorize the program. Comey ultimately told Bush that he and much of the department’s top leadership would resign if the program was reauthorized over their objections. The collection initiative was suspended, while the government looked for ways to place it on a firmer legal foundation.
By the time Obama was elected, the program had been brought within the law. It was placed under the supervision of a national security court, and both FISA and the Patriot Act were amended. Moreover, by then Congress had been more fulsomely briefed on the program, and significant numbers of officials within the executive branch had been “read in,” all of which increased checks against potential abuses. (The TSP had at one time been held so closely that even Fran Townsend, Bush’s chief counterterrorism adviser, was not aware of its existence.)
During the transition, Obama received a detailed briefing on the program—why it was valuable in the fight against terrorism and how it had been reformed to comply with the law. While Obama asked a lot of lawyerly questions, two sources familiar with the session say that when the briefing was over the president seemed ready to embrace it. Sure enough, it became a major weapon in his counterterrorism arsenal. One senior administration official confirmed that the database has been tapped for virtually every investigation relating to international terrorism. And sources tell The Daily Beast that it was the metadata program that led to the identification of Najibullah Zazi, the Afghan coffee vendor who plotted to attack the New York subway system in 2009. (Zazi was thwarted by the FBI and the New York Police Department after traveling from Colorado to New York City.)
But there’s more to the story. The fact that the TSP was in violation of FISA was not the only reason Comey and the other dissidents objected to it. Sources familiar with their thinking say many of them were deeply uncomfortable with the vast and indiscriminate scope of the program. And it appears that its sweeping nature has not changed since the Obama administration took over. A source who has been briefed on the current effort describes a system in which the National Security Agency, with the cooperation of most of the country’s largest telecommunications companies, is able to vacuum up the records of calls and emails of most Americans. By one estimate, the amount of data the NSA sucks up in close to real time is equivalent to one quarter of the entire Encyclopedia Britannica per second. All this metadata is then sifted by the NSA to detect patterns and links that might indicate terrorist activity. And when law enforcement or intelligence officials obtain the name of a suspected terrorist, they can run it against the database for hits.
It’s not clear that such a massive dragnet violates federal statutes or the Constitution, especially now that it is court authorized. But it was President Obama who said at his recent counterterrorism speech at the National Defense University, in the context of drones, that just because a counterterrorism tactic is legal or effective “is not to say it is wise or moral in every instance.” The debate on that question has at last begun.