Last week a Federal Circuit court found that the NSA’s “bulk collection” program unlawfully exceeded its statutory authorization in the USA-Patriot Act. According to the Court, for more than a decade the NSA has been collecting the metadata associated with all telephone calls made by Americans here in the U.S. The Court invites the Congress to debate this issue, and that debate has begun. But unless this debate includes a deeper inquiry into what intelligence activities actually involve, it will not really address the problem.
The Court’s decision rests, in large part on its exploration of what Congress meant by the word “relevance.” Congress passed provision at issue (Section 215) to allow for the collection of “all tangible things” which are “relevant” to the purposes of the Foreign Intelligence Surveillance Act (FISA) – a foreign intelligence gathering, and the core of the issue, as the Court see it, is what does “relevance” mean. The Court, correctly, echoes the words of numerous Congress members, who borrowed the word from its traditional use in the criminal justice system. We understand what “relevance” means in terms of evidence sought by a grand jury investigating crime, so, the argument runs, we can use that word in trying to set bounds on intelligence activities.
The problem is that the real question is not what “relevance” means – rather, the issue is about what does foreign intelligence mean.
We have a good understanding of what relevance means, and how criminal investigations work. But there is little understanding of how intelligence efforts actually work. Unfortunately, we have borrowed too much from law enforcement (and cinematic depictions of intelligence), and fall into the easy belief that intelligence efforts, particularly against terrorism, are simply bigger, scarier and internationally flavored criminal investigations. This is not accurate.
Intelligence efforts are not limited to trying to find out who did what, or find the “bad guy” before he strikes. Intelligence efforts, as established in the National Security Act of 1947 involve efforts to acquire information that can inform analysis of the plans, intentions and capabilities of foreign governments and persons. These plans, intentions and capabilities can be hostile, or friendly, both or neither. Such efforts do not involve determining guilt, or innocence. Collection to support this effort is wide ranging, and far exceeds the scope of what would be “relevant” in a criminal investigation. Intelligence professionals are interested in patterns, trends, and even the absence of activity. In short, to an intelligence professional almost everything is “relevant.”
Early in the debate on the USA-PATRIOT legislation, there was discussion of whether the FBI (at the time transforming itself into an intelligence organization) would want to get “bulk” credit card records, as the draft legislation appeared to allow exactly that. The answer was “why would we ever do that? Bulk records would not provide evidence of a crime?” The answer was right, from a law enforcement perspective, but completely wrong from an intelligence perspective. An intelligence officer wants everything possible, all the time. Bulk credit card records (and bulk telephone meta-data), to an intelligence officer, are relevant.
The key to addressing this issue, and taking up the not-so-subtle invitation from the Circuit Court to resolve it, is to better understand the fundamental differences between two related, but different, professional crafts – law enforcement and intelligence. Both use the concept of “relevance,” but answer the question “relevant to what?” differently. Law enforcement, rooted in our Anglo-American legal system bounds relevance in time and subject, and seeks to acquire evidence of specific wrongful conduct. Intelligence, in contrast, is interested in a much wider range of human activity, attempting to predict human behavior (in individuals and groups), assess plans, and understand capabilities, across a much wider spectrum. Until this difference is better understood, we cannot hope to meaningfully debate and resolve fundamental questions of civil liberty, rule of law and national security.
Cash, a lawyer with Day Pitney, is a former New York State prosecutor, and CIA intelligence officer; he served as a professional staff member on the U.S. Senate Select Committee on Intelligence during the debate over the USA-PATRIOT Act.