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“We take it for granted that the president does have that authority,” the court said, “and, assuming it is so, FISA could not encroach on the president’s constitutional powers.”
Chertoff also said that the courts have given wide latitude to the government in controlling and monitoring activity across international borders. All reports on the NSA activity assert that it’s limited to international communications.
What about the assertion in The New York Times on Tuesday that virtually all of the thousands of NSA leads sent to the FBI in the months after the Sept. 11, 2001, terrorist attacks led to dead ends or innocent persons?
Chertoff said, “You’re going to bat well below .100 any time you do intelligence gathering. That’s true even in conventional law enforcement. If you get even a small percentage of things to pan out, you’ve succeeded to a significant degree.
“What I can tell you is this,” Chertoff said. “The technique of electronic surveillance, which is gathering information about who calls whom or intercepting actual conversation, is the most significant tool in the war against terrorism.
“If we didn’t have it, I’m quite sure we’d have disrupted fewer attacks and identified fewer [terrorists].”
Buried at the bottom of the Times story were a number of cases where actual terrorist operations had been disrupted, apparently as a result of NSA eavesdropping, including efforts to smuggle a missile launcher into the United States, to cut Brooklyn Bridge cables with a blowtorch and an attempt to blow up a fertilizer bomb in London.
“I would rather move quickly and remove somebody when we’ve got a legal basis to do so, charge them with a lesser offense [than terrorism] or deport them, than wait till I have a big case with a big press conference. If we wait until people get operational, it’s a failure. Somebody could get killed.”
The idea that someone could bring down the Brooklyn Bridge with a blowtorch has been ridiculed, but Chertoff said, “People kid about the shoe bomber, but had the bomb gone off and 150 people were killed, I don’t think a lot of families would be laughing about it.”
Civil libertarians seem to fear that the government is collecting huge quantities of data that it can later use politically, but Chertoff said, “I don’t think anybody has an interest in accumulating a lot of information. We can barely manage the stuff we care about for avoiding terrorism.
“I can actually make the case that the more intelligence we’ve got, the more we actually protect civil liberties. In a world without intelligence, where we don’t have a good idea where the threats are, it means searching people, screening names, barriers and checkpoints, questioning people when they get on an airplane.”
To me, the bottom line of the NSA spying case is this: Congress should investigate whether President Bush has authority to conduct anti-terrorist data mining. And, if he doesn’t, Congress should give it to him — with legislative oversight.