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I’ve received several requests to respond to Tom Meyer’s very thoughtful post about how national security hawks should respond to criticisms of the NSA surveillance program. The piece is mostly about political argument and the art of rhetoric — I’m not quite sure from the post what Tom himself thinks is the best policy — so I’ll have to respond broadly.
What makes this issue difficult is that the war is covert, against a network of non-state fighters who disguise their communications and movements as innocent, but have great destructive power aimed at civilians. We are pursuing the wartime goal of stopping enemy attacks before they happen.
Perhaps we can all agree on three facts.
First, we are trying to find a needle in a haystack — those few messages buried in the mass of innocent communications that will lead us to a terrorist conspiracy.
Second, the criminal law approach — a warrant first, a search second — does not work in this situation (as we discovered on 9/11), because we would not have probable cause to search an individual target, whose identity we probably do not know and who has not, as of yet, done anything criminal.
Third, the magnitude of destruction from a terrorist attack is far greater than a criminal enterprise.
With those circumstances in mind, I do not see what practical, effective alternative there is to some kind of broad electronic surveillance program. One can argue about the details, in terms of how many NSA employees should run it, how much congressional and judicial oversight there should be, etc. But if we are going to continue to prevent terrorist attacks on the U.S. homeland, the U.S. will need to be able to sort through the mass of innocent communications to find signals that will allow it to detect the attack before it happens.
If one accepts the three stipulations above, I simply don’t see an effective alternative.Published in