Data-mining is the President's Duty

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Data-mining is the President's Duty

By Andrew C. McCarthy 

The Philadelphia Inquirer 

May 18, 2006 

The latest outbreak of controversy over Bush administration efforts to protect our nation from terrorist attack starkly demonstrates that the left and civil liberties extremists are determined to alter the system the Framers bequeathed us in fundamental and dangerous ways.

Justice Robert Jackson had been U.S. attorney general in the administration of FDR, the lion of the left who unapologetically eavesdropped on American citizens suspected of collusion with the enemy during World War II. In 1948, writing for the court, Jackson asserted that the president, "both as commander in chief and as the nation's organ for foreign affairs," was obliged to gather secret intelligence, and that it "would be intolerable" for federal courts to "review and perhaps nullify actions of the executive taken on information properly held secret." Such actions, Jackson elaborated, "are wholly confided by our Constitution to the political departments of the government, executive and legislative." They involve political judgments "of a kind for which the judiciary has neither aptitude, facilities nor responsibility."

Jackson was retracing a path stretching back to Washington, Jefferson, Hamilton, Madison and Lincoln, as well as such giants of the law as Justices John Marshall and Oliver Wendell Holmes Jr. Indeed, Holmes wrote for a unanimous Supreme Court in 1909, "When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."

It has been less than five years since the barbarous murders of nearly 3,000 Americans on Sept. 11, 2001. We are at war. We have 150,000 of America's best and bravest in harm's way. And we confront enemies who tell us, repeatedly, that they are working feverishly toward new strikes against our homeland that could dwarf the carnage of 9/11.

Under these circumstances, it is simply other-worldly that we find ourselves arguing over commonsense protective measures: the penetration of enemy communications and, as indicated by the most recent spate of sensational news stories (which, in fact, are a breathless rehash of five-month-old reporting), the mining of data that implicates no Fourth Amendment interests and invades no one's legitimate privacy rights.

Both initiatives have evidently been carried out by the National Security Agency, as authorized by President Bush. For the last six months, the critics' preoccupation has been to excoriate the administration for eavesdropping on Americans without judicial warrants. The charge is ludicrous.

As Jackson and Holmes trenchantly observed, external threats to the body politic are not judicial matters. The primary duty of government is security of the governed, and, for that central purpose, the American people democratically elect political representatives. The only one elected by all of them is the president (and vice president), and his paramount duty is to protect the public. Regardless of what is said in any statute - such as the much-discussed 1978 Foreign Intelligence Surveillance Act, which prescribes a procedure for conducting electronic surveillance under court supervision - our Constitution commits ultimate decision-making about which potential foreign agents warrant monitoring on the president. And that is the case whether those foreign agents are overseas or, like Mohammed Atta, embedded among us while plotting to kill.

The critics are repulsed by executive power, particularly when it is wielded by a Republican. The attacks on data-mining, however, betray the hollowness of their purported dedication to our civil liberties. For here, the NSA has been faithful to a goal the privacy lobby has hectored us about for months: national security that respects privacy.

The government apparently purchases phone records from service providers in order to amass a comprehensive data bank. Privacy, however, is rigorously protected: The data base does not include personal identifying information (names, addresses, etc.); just records of calling activity. That calling activity can tell us what numbers al-Qaeda agents are contacting in our midst, and which numbers those contacts then call. The system is designed to target only those contacts, rather than the rest of us, for investigation. If we had had it in 2001, embedded suicide hijackers might have been identified before 9/11.

The Supreme Court has held for more than a quarter-century that the data the NSA collects do not raise privacy concerns, even if identifying information is included. To malign a program that ingeniously collects it without invading privacy is not just disingenuous. It's suicidal.

Andrew C. McCarthy (acmcc3@optonline.net), a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies in Washington.

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I thought this topic would have generated comments from our resident dems. Especially since the dems have been going crazy over the program and the nominee for CIA director, Air Force Gen. Michael Hayden, has been involved with the program. Could it be the dems are really OK with the program, but only wish to demagogue the issue as a means to bash the President?

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I'll defend the program. It does smack of big brother, but what doesn't these days? They're mammoth, and that's just a fact of life now.

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