Breach of Law, Breach of Security – NSA Wiretapping

Note: This entry is the first in a Minaret of Freedom Institute mini-series called, ‘Breach of Law, Breach of Security’, highlighting the necessity of fighting terrorist networks through the use of the rule of law.

Leaks about the National Security Agency’s (NSA) domestic wiretapping program – also known as signals intelligence operations, or “SIGINT”– first appeared on December 16, 2005 in the New York Times. The article revealed that since 2002 President Bush authorized the monitoring of “…international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants…” Almost six months later, the USA Today further revealed the same program was not limited to foreign communications, but “‘to create a database of every call ever made’ within the nation’s borders…” and so far has had “access to records of billions of domestic calls…”

The NSA’s domestic wiretapping activities without judicial or congressional oversight are a clear example of the Bush administration’s incompetent counter-terrorism strategy, both legally and security-wise. On the legal front, the administration has severely restricted individuals’ right to privacy by violating the Foreign Intelligence Surveillance Act (FISA) of 1978 (regulating wiretapping of a foreign power through a special court), Title III (governing domestic criminal wiretapping), a series of communications privacy laws and possibly the Fourth Amendment of the Constitution. Initially, supporters of the NSA’s program urged Congressional leaders to legalize the domestic SIGINT operations and “‘encourage’–but not require–Bush or a future president to present any future surveillance program to the secret FISA court for approval.” On January 17, 2007 this policy was voluntarily reversed by the administration (even though it continues to block Congressional oversight of the NSA’s activities).

From a purely security standpoint, the NSA program also give us a chance to analyze the effectiveness of SIGINT and the agency itself in counter-terrorism operations. After information about the domestic SIGINT operations went public, administration officials attempted to defend the program against criticism by claiming it could have prevented 9/11 and was instrumental in preventing several other alleged terrorist plots. Others have debunked all of these baseless contentions, so I will focus on two claims.

First, the extent to which wiretapping SIGINT contributes to these operations, may be overblown. As early as October 2002 the USA Today reported the NSA had trouble penetrating and tracking Al-Qaeda cells because they “learned to evade U.S. interception technology––chiefly by using disposable cell phones or by avoiding phones altogether and substituting human messengers and face-to-face meetings to convey orders.” As the article illustrates, a heavy emphasis on SIGINT can be counterproductive to counter-terrorism efforts. Al-Qaeda members deliberately attempt to trigger false alerts by openly feeding disinformation. They can then plug up any internal communications leaks by observing when counter-terrorism forces act on the false intelligence. Determining the validity of information from SIGINT operations has been difficult even for the most experienced analysts because what are collected are vague statements that can be easily misinterpreted.

Second, according to the 2006 USA Today article, NSA officials claimed domestic SIGINT operations help fight terrorism by using the data produced for “social network analysis.” However the current social network analysis methods used to guide SIGINT operations called “snowball sampling,” (a type of electronic dragnet) are not well suited for the type of counter-terrorism operations traditionally done by FBI criminal investigators. Research conducted by two social network experts, Maksim Tsvetovat and Kathleen Carley [PDF], finds that the snowball method is better suited for highly connected groups, as opposed to small, loosely connected cellular networks [PDF] which define Al-Qaeda. The NSA’s snowball sampling methods gathered a massive volume of useless information that led FBI officials nowhere, wasting limited resources and time. Furthermore, the domestic SIGINT operations are put an enormous technical strain on the NSA’s resources, forcing the agency to consume voracious amounts of electricity–on top of dealing with its current computer problems–to sustain its current operational capacity. This jeopardizes our national security by running the risk of another electrical overload, similar to the one that paralyzed the agency seven years ago and left our nation vulnerable for nearly three days.

Both of these examples illustrate that the NSA, with its SIGINT focus, is not well suited for the type of work effectively conducted FBI criminal investigators. They show that electronic (or human) dragnets are not only ineffective, but also sometimes counterproductive to fighting terrorism. Getting the proper information is necessary, but analyzing it, investigating it and disseminating it to the right people are also imperative. Failing to do these other three steps were major factors that led to the 9/11 [PDF] and 7/7 attacks.

Finally, I will end by examining the broader implications in the fight against terrorist networks. Although the NSA now works within the FISA framework, one must ask whether or not that is best legal approach to fighting terrorism. Assuming that administration’s highly questionable justification for bypassing the FISA warrants–allegedly too difficult and slow to be approved–is true, one should consider that, there are 94 federal judicial districts, but only one FISA court. By the time any security agency manages to get through the “cumbersome” FISA process, it could have obtained permission for a criminal wiretap based on the Title III from any of the many other federal courts. But beyond time and logistics issues of FISA versus criminal courts, there is a larger conceptual conflict within policy circles. It is between using counter-intelligence versus law enforcement approaches to counterterrorism–which have enormous ramifications for both the legal and tactical directions in the fight against terrorist networks.

Former 16-year FBI veteran Michael German finds that instead of the current counter-intelligence approach that drives counter-terrorism policy, the FBI and broader US government should be taking a more law-enforcement based approach instead. The common thread problem of a counter-intelligence approach is its strong need for secrecy. Tactically “on the ground”, secrecy hinders the necessary intelligence sharing to combat terrorists out of a need to protect sources and methods, nor exposes good and bad practices which give less incentive for agencies to review and reform themselves when mistakes are made. Secrecy also allows more room for abusive practices–such as torture at Guantanamo and Abu Ghraib–that are quadruply disastrous for America by undermining its human rights and civil liberties foundations, by diverting limited intelligence resources from other areas to these torture centers, by failing to get credible intelligence, and by convincing Muslims that Bin Laden’s assertions of a US-led war against Islam are correct.

As Benjamin Franklin once said, “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” My main thesis is that civil liberties and the rule of law are not a convenience that needs to be short-changed in an era when all people – non-Muslim and Muslim alike – are threatened by terrorism. They are guiding principles that will help successfully ensure America uses legal and effective tactics in the short-term and achieve strategic success in the long term by proving to the world that America’s principles of liberty and justice for all are not a farce, but a living reality, even in times of combat.

Wa Allahu ‘Alim. (And God knows best.)

Alejandro Beutel


Alejandro Beutel is program assistant for the Minaret of Freedom Institute with expertise in religious freedom, democratization and security issues.






10 responses to “Breach of Law, Breach of Security – NSA Wiretapping”

  1. […] Prior to 9/11 a national consensus outlawing the use of racial profiling was emerging. After the attacks occurred, “…this consensus evaporated… The federal government immediately focused massive investigative resources and law enforcement attention on Arabs, Arab Americans, Muslims, and those perceived to be Arab or Muslim, such as Sikhs and other South Asians” [The Leadership Conference on Civil Rights, Racial Profiling: Wrong Then, Wrong Now, Feb. 27, 2003]. Since then, public calls for racial profiling of Muslims – and others who “look Muslim” – by various pundits has now become common fare in public discourse. The logic of racial profiling supporters – both pundits and some public officials – rests on the faulty premise that it is “a matter of survival” against terrorists. To the contrary, I argue that, like the warrantless NSA wiretapping, racial profiling is not only unethical, it also compromises America’s legal foundations and its national security. […]

  2. […] New York Times editorial slams Bush administration’s withdrawal of its voluntary–not legally mandated– decision to get a court warrant before electronically spying on Americans: […]

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