At a recent privacy seminar held at the Woodrow Wilson Center for Scholars, Republican Senator John Sununu voiced concerns about the domestic phone call database that the NSA has been developing. This database allows the NSA to collect “call detail records,” or CDRs. These records do not include the content of a telephone call, but rather the specific characteristics of the call, including the phone numbers of the parties to the call, its duration, and so forth.
Senator Sununu claimed that the real issue is not the legality of the NSA program, since the NSA could have utilized national security letters (NSLs) under the Patriot Act to circumvent the ordinary warrant requirement. Rather, the real issue is whether there’s any value in allowing the NSA to engage in this particular kind of surveillance.
As someone committed to civil liberties, my initial reaction is to applaud Sununu’s clear thinking—after all, we have very little positive evidence that the NSA’s program will help identify and capture al Qaeda members. But on reflection, Sununu’s view is less appealing than it initially seems. If one accepts for the sake of argument Sununu’s claim that the NSA’s dragnet surveillance program is constitutional (which I do not), then the viability of the NSA program depends exclusively on whether it produces results. But how can we know whether the program is effective until it has been in operation for a significant period of time? In other words, Sununu’s skepticism about the program seems a bit premature. If the only thing standing in the way of the NSA program is its constitutionality, the Bush Administration can easily make the (impossible to disprove) argument that the NSA program will one day produce results. And that is what is so dangerous about Sununu’s view.