Feb. 6, 2016 SIGN IN | REGISTER

NSA Data Mining Is Legal, Necessary, Sec. Chertoff Says

“I think it’s important to point out,” Homeland Security Secretary Michael Chertoff told me in an interview, “that there’s no evidence that this is a program designed to achieve political ends or do something nefarious.”

He was talking about the National Security Agency’s warrantless “domestic spying” program, and I couldn’t agree with him more. Despite the alarms sounded by the American Civil Liberties Union, former Vice President Al Gore and various Members of Congress, “there hasn’t even been a hint” that the program is targeted at domestic dissidents or innocent bystanders, Chertoff said. It’s designed to find and stop terrorists.

“If you go back to the post-Sept. 11 analyses and the 9/11 commission, the whole message was that we were inadequately sensitive to the need to identify the dots and connect them,” he said.

“Now, what we’re trying to do is gather as many dots as we can, figure out which are the ones that have to be connected and we’re getting them connected,” he said.

While refusing to discuss how the highly classified program works, Chertoff made it pretty clear that it involves “data mining” —collecting vast amounts of international communications data, running it through computers to spot key words and honing in on potential terrorists.

A former prosecutor, federal judge and head of the Justice Department’s criminal division, he convincingly defended the program’s legal basis and intelligence value.

I asked him why the Bush administration can’t comply with the 1978 Foreign Intelligence Surveillance Act, which allows the government to conduct “emergency” wiretaps for 72 hours.

“It’s hard to talk about classified stuff,” he said, “but suffice it to say that if you have a large volume of data, a large number of [phone] numbers you’re intercepting, the typical model for any kind of warrant requires you to establish probable cause [that one party is a foreign agent] on an individual number.”

FISA warrant applications are inches thick, he said, and “if you’re trying to sift through an enormous amount of data very quickly, I think it would be impractical.” He said that getting an ordinary FISA warrant is “a voluminous, time-consuming process” and “if you’re culling through literally thousands of phone numbers ... you could wind up with a huge problem managing the amount of paper you’d have to generate.”

What I understood Chertoff to be saying is that when data mining produces evidence of a terrorist contact, the government will then seek a FISA warrant to actually tap the person’s phones or “undertake other kinds of activity in order to disrupt something.”

As legal authority for the program, Chertoff cited a 2002 decision of the FISA Court of Review, which is one level down from the U.S. Supreme Court, holding that a president has “inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information.”

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