The Warrantless Debate Over Wiretapping

By PHILIP BOBBITT

Published: August 22, 2007

CONGRESS just passed, and President Bush hurriedly signed, a law that amends the legal framework for the electronic interception of various kinds of communication with foreign sources. Almost immediately, commentators concluded that the law was unnecessary, that it authorized a lawless and unprecedented expansion of presidential authority, and that Democrats in Congress cravenly accepted this White House initiative only for the basest political reasons. None of these widely broadcast conclusions are likely to be true.

All sides agree that some legislative fix is required because of changes in telecommunications technology. Where once it made sense to require warrants when one party to a foreign conversation was in America, this ceased to be the case when American routers became the transit points for foreign conversations that might or might not involve a person in the United States.

Once linear, analog, point-to-point communication has been replaced by the disaggregated packets of the Internet, two people talking to each other in Europe could find their conversations going through American switches. It also became difficult to determine the true origin of any communication that was routed through the United States. If a terrorism suspect in Pakistan is having conversations with someone on a computer with a New York Internet protocol address via a chat room run by an Internet service provider in London, where exactly is the intelligence being collected? If the answer is the United States simply because the servers are here, of what possible relevance could that be to the protection of the rights of Americans?

Amending the statute to focus on protecting American people rather than an American address would not have dealt with a larger and more profound problem. The change in the global communications infrastructure is both a driver and a consequence of a change in the nature of conflict. The end of the cold war was brought about in part because of technologies that empowered the individual and whetted people’s appetites for more control over their lives. These same developments also empower networks of terrorists, and the war they will soon be capable of waging has little in common with the industrial warfare of the 20th century. Accordingly, foreign intelligence tasks will also change.

It made sense to require that the person whose communications were intercepted be a spy when the whole point of the interception was to gather evidence to prosecute espionage. This makes much less sense when the purpose of the interception is to determine whether the person is in fact an agent at all. This sort of communications intercept tries to build from a known element in a terror network — a person, a telephone number, a photograph, a safe house, an electronic dead-drop — to some picture of the network itself. By crosshatching vast amounts of information, based on relatively few confirmed elements, it is possible to detect patterns that can expose the network through its benign operations and then focus on its more malignant schemes.

For this purpose, warrants are utterly beside the point. As Judge Richard Posner has put it, “once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets.” Warrants, which originate in the criminal justice paradigm, provide a useful standard for surveillance designed to prove guilt, not to learn the identity of people who may be planning atrocities.

A statutory fix that simply waived the warrant requirement when both parties to a conversation were foreign would scarcely address this problem. Technology is changing the nature of the threat, not merely the mechanics of collection. The statutory change is unnecessary, I suppose, if you believe that there is in fact no real threat, that it’s all hype by the White House to expand its powers — presumably to some other end — and that all we have to fear is fear itself. Doubtless, some people do believe this. If the editorialists and columnists in the news media make this assumption, they should frankly say so (and hold their breath until the next attack).

Furthermore, there is an unstated assumption that warrantless surveillance is lawless surveillance. There is, however, judicial precedent for warrantless searches, even if you can’t tell this from the public debate. The president of the American Bar Association objected to the new statute by sarcastically observing, “The last time I checked, the Fourth Amendment is still in the Bill of Rights,” which he doubtless believed to be a withering salvo.

In fact, there are many instances in which warrantless surveillance has been held to be permissible under the Fourth Amendment. Searches in public schools require neither warrants nor a showing of probable cause. Government offices can be searched for evidence of work-related misconduct without warrants. So can searches conducted at the border, or searches undertaken as a condition of parole. Searches have been upheld in the absence of a warrant where there is no legitimate expectation of privacy. The Clinton administration conducted a warrantless search — lawfully — when it was trying to determine what the spy Aldrich Ames was up to. The day after Pearl Harbor, President Roosevelt authorized the interception of all communications traffic into and out of the United States.

Then there is the widespread charge that Democrats supinely accepted all this on political grounds. There probably were Democrats who adapted their long-held views on the Foreign Intelligence Surveillance Act to political necessity. But these are most obviously to be found on the other side of the vote. Senators Hillary Clinton, Christopher Dodd and Joseph Biden — all of whom are running for president — voted against this legislation, when their records are otherwise quite forceful where national security issues are concerned. With respect to those voting in favor of the statute, I find it hard to believe that Senator Daniel K. Inouye of Hawaii and Senator Jim Webb of Virginia are concerned about appearing insufficiently sensitive to security threats to the country.

Why would we be troubled in any case when a politician in a democracy votes the way he thinks the people want? Polls show that the American public is not as anti-security-minded as the American Civil Liberties Union. That’s why we need an A.C.L.U., I imagine.

One good reason not to want popular politics to guide such decisions arises when the public is not well-informed. Partly this can be laid at the door of the incumbent president, the Great Miscommunicator. But mainly it lies with those people who don’t bother giving reasons, don’t explain or give arguments, who prefer to traduce the people with whom they disagree by attacks on their characters, which are presumed to be insufficiently stalwart.

In Robert M. Gates, the defense secretary, Mike McConnell, the director of national intelligence, and Gen. Michael V. Hayden, the director of central intelligence, we have about as good a team as it is possible to imagine. Most people in Congress know that. Why not assume they are proposing a solution to a real problem? Developments in technology are forcing a long-overdue statutory change — and those developments will be with us long after the politics of the moment have passed.

Philip Bobbitt, a professor of law and the director of the Center for National Security at Columbia University, was a National Security Council senior director from 1998 to 1999.