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Opinion: Why NSA spying puts the U.S. in danger

A former analyst looks at the agency's current controversy

By Ira Winkler
May 16, 2006 12:00 PM ET

Computerworld - As a former NSA analyst, I'm dismayed by the continuing revelations of the National Security Agency's warrantless -- and therefore illegal -- spying.  The case involves fundamental issues related to NSA’s missions and long-standing rules of engagement.  What's even more dismaying is the lack of public reaction to this.

Fundamentally, this is an issue of law.  FISA, the Foreign Intelligence Surveillance Act, was established in 1978 to address a wide variety of issues revolving around Watergate, during which a president used foreign intelligence agencies to collect data on U.S. citizens.  As part of FISA, the NSA has to get warrants to analyze and maintain collections of data involving U.S. citizens. FISA has withstood all tests until now, and it involves a fundamental aspect of the U.S. Constitution -- its system of checks and balances.

The FISA law allows NSA to request those warrants up to 72 hours after the fact -- that is, after the data has been analyzed.  And lest you think that the courts from which such warrants are requested are staffed by a bunch of liberal, activist, criminal-coddling judges, they have reportedly turned down only five warrants in the last 28 years. So when President Bush says, "If Osama bin Laden is calling someone in the United States, we want to know about it," followed by his nervous laugh, he's laughing at the American public, since "knowing about it" is a totally irrelevant issue. FISA blocks no legitimate acquisition of knowledge.

It doesn't even slow the process down. The issue is not that the NSA cannot examine calls into the U.S. from terrorist suspects -- FISA provides for that -- but that the agency must justify acting on the results and keeping the information within 72 hours.  The president claims that the process of getting those warrants -- of complying with the law -- is too time-consuming.  Normally, that would sound like simple laziness, but the reality is that the program is so large that they would need an army of lawyers to get all the warrants they'd need to be in compliance with FISA. But the law is the law.  No president has the right to pick and choose which laws they find convenient to follow. 

If Bush didn’t like the FISA laws, he could have asked Congress to amend them.  After all, after 9/11 Congress passed a wide variety of laws (without, for the most part, reading them) that were supposed to prevent another attack.  They could have easily slipped something modifying FISA into all of that legislation. They did not, though recent revelations about this administration's use of signing statements may indicate that they simply didn't want to raise the possibility of questions. 

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