May 17, 2006 | Commentary on National Security and Defense

Trashing NSA's Hayden

At some news organizations, timing is everything. That is certainly the impression one gets from the publication of USA Today's front-page story on the National Security Agency's "massive database of Americans' phone calls," which ran last Thursday. That makes it exactly one week before the beginning of confirmation hearings for Gen. Michael Hayden, currently director of the NSA, and in line to succeed Porter Goss as director of the CIA. Members of the Committee have jumped on the chance to grill Gen. Hayden, as surely USA Today wanted them to.

According to his bio, Gen. Hayden is "responsible for overseeing the day-to-day activities of the national intelligence program" and "the highest ranking military intelligence officer in the armed forces." That of course would make him also chiefly responsible for the NSA's telephone surveillance programs, including the much-criticized program revealed by the New York Times back in December of intercepts of phone calls between suspected terrorist suspects in the United States and their contacts abroad.
It also makes Gen. Hayden a central figure in the program described in USA Today last week involving the NSA's contract with three major phone companies, AT&T, Verizon, and BellSouth, to provide calling records to the agency. According to one of the story's numerous anonymous sources, "It's the largest database ever assembled in the world."

The agency's goal is "to create a database of every call ever made" within the United States. This is nowhere as sinister as the newspaper tries to make it sound. The collection of data on phone calls and calling networks is nothing out of the ordinary, and is a law-enforcement tool of long standing. What may be different is the scope of the data collection by the NSA, which is hoping to trace patterns leading to terrorist networks. But the activity itself is neither illegal nor unconstitutional.

Now, the government would have needed a search warrant from a judge to listen in on the content of those calls within the United States, but the mere fact that someone has dialed a certain phone number at a certain time is no secret. The phone companies have all the records, which they list on our phone bills; and these calling records can even be bought over the Internet.

In defense of the program's constitutionality, the government can cite the Supreme Court in Smith vs. Maryland (1979), a robbery case in which the arrest was based on phone records obtained of calls from the robber's home phone to the victim's. The police made no intercept of the phone calls until a judge had signed a search warrant, based on the pattern of calls revealed.

In response to an appeal by the convicted robber, which the Supreme Court turned down, the Court found that "it is doubtful that telephone users have any expectation of privacy regarding the phone numbers they call, since they typically know that they must convey phone numbers to the phone company...Secondly, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is [prepared to recognize as 'reasonable.'?" And the fact is that most Americans do accept that their phone records are not private. Do I mind that the U.S. government knows I call my brother in Denmark most weekends? Of course not, but knowledge of our conversations is probably entirely useless to anyone but the two of us and our families.

Even the polls cited by USA Today, could only come up with a 51 to 43 percent disapproval by Americans of the NSA database, as initially reported by the paper. Nowhere the same attention was given to Question 7 in the poll: "If you knew the federal government had those phone records, would you be very concerned, somewhat concerned, not too concerned, or not concerned at all?" Not too concerned and not concerned at all were 64 percent of respondents. By contrast, just 35 percent were very concerned or somewhat concerned.

The latter result was also borne out by a Washington Post-ABC poll conducted the day the USA Today story was all over the news. It turned out that 65 percent of Americans think it is more important for the government to investigate terrorist threats than to never intrude on their privacy.

All of which should help put the hue and cry of the upcoming hearings in perspective. What the Judiciary Committee should focus on, but probably won't, is whether Gen. Hayden is the best man for the job.

Helle Dale is director of the Douglas and Sarah Allison Center for Foreign Policy Studies at the Heritage Foundation.

About the Author

Helle C. Dale Senior Fellow for Public Diplomacy
The Margaret Thatcher Center for Freedom

First appeared in the Washington Times