Even as the debate about arm­ing the [Syr­i­an] rebels took on a new urgency, Mr. Oba­ma rarely voiced strong opin­ions dur­ing senior staff meet­ings. But cur­rent and for­mer offi­cials said his body lan­guage was telling: he often appeared impa­tient or dis­en­gaged while lis­ten­ing to the debate, some­times scrolling through mes­sages on his Black­Ber­ry or slouch­ing and chew­ing gum.

New York Times, Octo­ber 22, 2013

A Pres­i­dent has enor­mous demands on his time and atten­tion. He can’t focus on every­thing. He must choose. Pres­i­dent Oba­ma, if the New York Times account is to be believed, chose to be “impa­tient” and “dis­en­gaged” as his advis­ers last year pre­sent­ed him with options on Syr­ia, per­haps explain­ing why he fol­lowed what the Times termed “an uncer­tain path amid Syr­i­an bloodshed.”

The dis­en­gage­ment from mat­ters of nation­al secu­ri­ty that served him so poor­ly through­out the Syr­i­an affair might unique­ly suit him to resolve the con­tro­ver­sy over whether the gov­ern­ment should con­tin­ue to gath­er large vol­umes of data about US citizens.

The NSA’s tele­pho­ny meta­da­ta col­lec­tion pro­gram, recent­ly renewed for an addi­tion­al three months by the For­eign Intel­li­gence Sur­veil­lance Court [FISC], has been con­test­ed in Con­gress and the courts since it was made pub­lic by for­mer NSA con­trac­tor Edward Snow­den last June. Fed­er­al Dis­trict Court Judge Richard Leon last month found the pro­gram like­ly uncon­sti­tu­tion­al but stayed his own order to ter­mi­nate pro­gram, pend­ing appeal. The gov­ern­ment on Fri­day for­mal­ly asked an appeals pan­el to over­turn Leon’s ruling.

Late last month, in a sep­a­rate but relat­ed case, anoth­er fed­er­al judge upheld the pro­gram. Judge William Pauley’s opin­ion is a curi­ous one, devot­ing just 7 of its 54 pages to the ques­tion of whether col­lect­ing phone records on all Amer­i­cans vio­lates the Fourth Amendment’s  pro­hi­bi­tion against unrea­son­able search­es and seizures. For Pauley, the Supreme Court’s 1979 rul­ing in Smith v. Mary­land jus­ti­fies that pro­gram. In that case, police obtained the phone records of a rob­bery sus­pect who had made threat­en­ing and sex­u­al­ly harass­ing phone calls to his vic­tim, help­ing them obtain a con­vic­tion. The court ruled that the sus­pect had no rea­son­able expec­ta­tion of pri­va­cy with respect to those phone records. The facts in that case are indis­tin­guish­able from those sur­round­ing the NSA pro­gram, accord­ing to Pauley, despite the fact that the pro­gram involves what he termed “the col­lec­tion of breath­tak­ing amounts of infor­ma­tion” [p. 42].

Hav­ing brushed aside con­sti­tu­tion­al con­cerns, Pauley devotes much of his opin­ion to defend­ing the pro­gram, begin­ning with an account of the 9/11 ter­ror­ist attacks. Crit­i­cal infor­ma­tion in advance of the attacks, he opines, “would have fur­nished the miss­ing infor­ma­tion and might have per­mit­ted the NSA to noti­fy the [FBI] of the fact that [one of the sus­pects] was call­ing the Yemeni safe house from inside the Unit­ed States” [pp 1–2]

That spec­u­la­tion – that the gov­ern­ment might have acquired infor­ma­tion that it might have used to foil an act of unspeak­able destruc­tion – per­me­ates the rul­ing. The pro­gram, Pauley writes:

Vac­u­ums up infor­ma­tion about vir­tu­al­ly every tele­phone call to, from or with­in the Unit­ed States. That is by design, as it allows the NSA to detect rela­tion­ships so atten­u­at­ed and ephemer­al they would oth­er­wise escape notice. As the Sep­tem­ber 11th attacks demon­strate, the cost of miss­ing such a thread can be hor­rif­ic. Tech­nol­o­gy allowed al-Qae­da to oper­ate decen­tral­ized and plot inter­na­tion­al ter­ror­ist attacks remote­ly. The bulk tele­pho­ny meta­da­ta col­lec­tion pro­gram rep­re­sents the Government’s counter-punch: con­nect­ing frag­ment­ed and fleet­ing com­mu­ni­ca­tions to re-con­struct and elim­i­nate al-Qaeda’s ter­ror net­work [p. 52].

I’ve writ­ten pre­vi­ous­ly about why I believe the pro­gram to be uncon­sti­tu­tion­al. The Fourth Amend­ment secures our right “to be secure in [our] per­sons, hous­es, papers, and effects, against unrea­son­able search­es and seizures.” Before col­lect­ing infor­ma­tion about us, the gov­ern­ment must show “prob­a­ble cause” in order to obtain a war­rant “par­tic­u­lar­ly describ­ing the place to be searched, and the per­sons or things to be seized.” War­rants issued by the secret FISC are any­thing but spe­cif­ic. They autho­rize, as Judge Leon wrote, “con­tin­u­ous, dai­ly search­es of vir­tu­al­ly every Amer­i­can cit­i­zen with­out any par­tic­u­lar­ized sus­pi­cion” [p. 58], a pow­er that “no court has ever recognized.”

Con­sti­tu­tion­al infir­mi­ties aside, Pauley’s opin­ion is inter­est­ing for the depth of its faith in the gov­ern­ment. The gov­ern­ment must cast “a wide net that could find and iso­late gos­samer con­tacts among sus­pect­ed ter­ror­ists in an ocean of seem­ing­ly dis­con­nect­ed data,” Pauley writes [p. 2]. Giv­en enough data, enough infor­ma­tion, enough knowl­edge, the gov­ern­ment will “elim­i­nate al-Qaeda’s ter­ror network.”

That con­fi­dence seems to be wide­ly shared among cur­rent and for­mer intel­li­gence offi­cials. The for­mer deputy direc­tor of the CIA Coun­tert­er­ror­ist Cen­ter, Philip Mudd, recent­ly took to the pages of the Wall Street Jour­nal to praise the government’s grow­ing efforts to fol­low the dig­i­tal trails we leave when­ev­er we make a phone call, send a text, use social media or con­nect to a website.

Human sur­veil­lance oper­a­tions are slow, inef­fi­cient and cost­ly. And they have a high­er risk of miss­ing mem­bers of the net­work. The fastest, most effi­cient solu­tion to map­ping a net­work of con­spir­a­tors lies in fol­low­ing dig­i­tal con­nec­tions among peo­ple. And as dig­i­tal trails expand, dig­i­tal net­work map­ping will increase in val­ue. … Our dig­i­tal trails will grow as more of our lives appear in bits and bytes, in records held by tomor­row’s Ama­zons and Face­books. And we know that to piece togeth­er net­works, law enforce­ment and intel­li­gence will use these data streams and need his­tor­i­cal data to do so.

Mudd illu­mi­nates the moti­va­tion behind the mas­sive data col­lec­tion scheme: to stop ter­ror­ists, gov­ern­ment requires a form of omni­science. In his esti­ma­tion, tra­di­tion­al intel­li­gence tools are of lit­tle val­ue. Sur­veil­lance based on par­tic­u­lar and rea­son­able sus­pi­cion – he cites the exam­ple of Soma­lian expats who pay cash for one-way tick­ets to coun­tries bor­der­ing Soma­lia – just doesn’t cut it any­more. The gov­ern­ment must “map[] dig­i­tal inter­ac­tions among peo­ple.” All peo­ple. And it must retain that data for­ev­er, the bet­ter to dis­cern sus­pi­cious patterns.

Mudd and Pauley betray an exces­sive reliance on government’s capa­bil­i­ties and good­ness. Like pro­gres­sives who argue for more cen­tral­ized con­trol of the econ­o­my, Mudd believes that gov­ern­ment can improve our lives only if it acquires more knowl­edge and pow­er. The prob­lem with this rea­son­ing is that it pre­sumes an all-know­ing and all-com­pe­tent gov­ern­ment — one that can col­lect data on hun­dreds of mil­lions (and per­haps bil­lions) of peo­ple, mine it, iden­ti­fy and fol­low up on every sol­id piece of evi­dence, find the bad guys and arrest them before they act.

That gov­ern­ment exists only in the realm of imag­i­na­tion; in the real world, gov­ern­ment is pop­u­lat­ed with nor­mal human beings who often miss the most obvi­ous trails of sus­pi­cion that ter­ror­ists cre­ate before they car­ry out their attacks.  Con­sid­er last year’s Boston Marathon bomb­ings. Act­ing on a 2011 request from the Russ­ian gov­ern­ment, the FBI:

Checked US gov­ern­ment data­bas­es and oth­er infor­ma­tion to look for such things as deroga­to­ry tele­phone com­mu­ni­ca­tions, pos­si­ble use of online sites asso­ci­at­ed with the pro­mo­tion of rad­i­cal activ­i­ty, asso­ci­a­tions with oth­er per­sons of inter­est, trav­el his­to­ry and plans, and edu­ca­tion his­to­ry. The FBI also inter­viewed Tamer­lan Tsar­naev and fam­i­ly members.

After all of that, the agency con­clud­ed Tsar­naev posed no threat.  Two years lat­er, he and his broth­er com­mit­ted the atroc­i­ty.  That is not to fault the FBI or oth­ers engaged in gov­ern­ment coun­tert­er­ror­ism. The jobs they do are enor­mous­ly dif­fi­cult and enor­mous­ly valu­able and they are bound to miss things from time to time. It is only meant to illus­trate that the gov­ern­men­t’s data­bas­es and sur­veil­lance capa­bil­i­ties, even when appro­pri­ate­ly direct­ed at an indi­vid­ual sus­pect­ed of ter­ror­ist incli­na­tions, don’t work the way that Mudd and Pauley imag­ine that they do.

That’s also true of ter­ror­ist attacks on over­seas US facil­i­ties. The New York Times last week ran a major sto­ry on the Sep­tem­ber 2012 ter­ror­ist attack in Beng­hazi. Much has been made of its report that the attack­ers, who stormed the com­pound with Kalash­nikovs in their ini­tial assault, had seen a YouTube video that many Mus­lims found offen­sive and that they were not asso­ci­at­ed with al-Qae­da, but with a less­er known ter­ror­ist enter­prise called Ansar al-Sharia. The rel­e­vant point here is that sym­pa­thet­ic Libyans had warned US offi­cials of an immi­nent ter­ror­ist attack, warn­ings that were overlooked.

This is not to fault any­one who was aware of the dan­ger and failed to take appro­pri­ate mea­sures that would have spared the lives of four Amer­i­cans. Peo­ple make mis­takes. It is only to say that the Beng­hazi attacks did not occur because our gov­ern­ment knew too lit­tle.  It had the infor­ma­tion it need­ed to avert the attack and it acquired it with­out vio­lat­ing the civ­il lib­er­ties of hun­dreds of mil­lions of Americans.

The gov­ern­ment didn’t need my phone records to know that Tamer­lan Tsar­naev was dan­ger­ous or that ter­ror­ists might attack our Beng­hazi facil­i­ty. Those attacks were suc­cess­ful because gov­ern­ment, like any oth­er human enter­prise, is fal­li­ble. Data — even in unimag­in­ably large dos­es — doesn’t cure fal­li­bil­i­ty.  A gov­ern­ment that over­looks clues in Beng­hazi and Boston will over­look them in the troves of phone records it inap­pro­pri­ate­ly amass­es on inno­cent cit­i­zens.  All the more rea­son why gov­ern­ment should­n’t breach its con­sti­tu­tion­al lim­its in com­bat­ing terrorism.

A recent report of a Pres­i­den­tial advi­so­ry group rec­om­mends that gov­ern­ment con­form its data-gath­er­ing to those limts.  They called, among oth­er things, for leg­is­la­tion to lim­it the abil­i­ty of the FISC to issue sweep­ing sub­poe­nas (p. 86) and to end the NSA’s data col­lec­tion pro­gram (p. 115). The group sug­gest­ed instead that phone com­pa­nies be required to retain records (just as the gov­ern­ment, for exam­ple, requires indi­vid­u­als and busi­ness­es to retain their tax records and doc­tors to retain med­ical records) in search­able form. When the gov­ern­ment has prob­a­ble cause to believe that a par­tic­u­lar indi­vid­ual may be impli­cat­ed in poten­tial ter­ror­ist activ­i­ties, it could obtain a war­rant from the FISC per­mit­ting it to search the phone company’s records for infor­ma­tion about that indi­vid­ual. Such a change would, the group argues, allow the gov­ern­ment to pur­sue coun­tert­er­ror­ist inves­ti­ga­tions with­out vio­lat­ing civ­il liberties.

The group’s advice affords the Pres­i­dent a moment of oppor­tu­ni­ty. He is said to be prepar­ing an announce­ment, per­haps as soon as this month, in response to the report. He should embrace its rec­om­men­da­tions to rein in the FISC and end NSA’s data col­lec­tion pro­gram. Since he has often treat­ed Con­gress as a super­flu­ous arm of gov­ern­ment, he should imple­ment those rec­om­men­da­tions by exec­u­tive action, rather than rely­ing on Con­gress to enact a con­tentious law in a tox­ic polit­i­cal environment.

Such an order would be far more con­sti­tu­tion­al­ly sound than his many impro­vi­sa­tions on the health care law. He does, after all, head the fed­er­al government’s exec­u­tive branch. He can direct the Jus­tice Depart­ment not to seek sweep­ing war­rants from the FISC. And since no law requires the NSA to col­lect everyone’s phone records, he can order the pro­gram’s termination.

Pres­i­dent Oba­ma seems more emo­tion­al­ly dis­tant on mat­ters of nation­al secu­ri­ty than his pre­de­ces­sors. That detach­ment could serve him well if he chan­nels it into requir­ing the gov­ern­ment to cease and desist from its unlaw­ful snoop­ing activities.