The recent lawsuit by the American Civil Liberties Union, Council on American-Islamic Relations, and the Center for Constitutional Rights against the National Security Agency's anti-terrorist program has taken lawfare to a new level. This is the first time that a signals intelligence program has been targeted by lawfare.
Technical intelligence has normally been preferred as a method of gathering information over human intelligence, precisely because it avoids controversy. Satellites do not tend to demand money for their services, nor do they have a past that can prove embarrassing should it hit the front page of the Washington Post. Technical intelligence had never really violated the sensibilities of human rights groups. Until, that is, the New York Times reported on efforts to track al-Qaeda communications with people in the United States.
The problem is, of course, that now, sensibilities have been offended. This is despite the fact that this program has definitely prevented attacks, according to one Senator briefed in on the program. Even though there have been no credible allegations that the NSA's capabilities have been turned on domestic political figures. Also, the NSA operation picked up on recruitment, training, and fund-raising by al-Qaeda.
Naturally, most of the media is taking the side of the ACLU, CAIR, and CCR. One outlet has claimed that the program has led to a great deal of dead-ends (which can be the case with signals intelligence in general). Often, the real benefit of signals intelligence only comes after persistent monitoring of suspected bad guys. The mainstream media has also conveniently forgotten about the similar "Echelon" and "Carnivore" programs pushed by the Clinton Administration.
What has been a big issue is that the FBI has apparently joined in the sniping. This is the classic case of a Washington turf battle that has also expanded to include the Foreign Intelligence and Surveillance Act Court. The NSA program ordered in the wake of the attacks of September 11, 2001, has diminished the turf that these two entities controlled. They want it back. Washington, D.C., turf battles are known to be very vicious - often because the stakes are very small. They are also not new. In 1942, the codebreakers at Hawaii were not only trying to break Japanese military codes, they were fighting a bureaucratic battle with bureaucrats in Washington D.C. The bureaucratic battle nearly ruined the chances for the decisive victory at Midway.
The current reporting has led to reports that numerous disposable cell phones are being purchased by terrorists. This is not the first time leaks of intelligence capabilities have resulted in a change of communications methods by al-Qaeda. In 1998, a leak about signals intelligence led Osama bin Laden to stop using his satellite phone - depriving the United States of a valuable intelligence source. The entire NSA controversy will cost the United States in terms of intelligence. The only real question is how high the cost will be. - Harold C. Hutchison (email@example.com)