At this writing, President Obama is set imminently to make one of the most momentous choices in the history of American intelligence. He will decide whether to curtail or terminate the National Security Agency’s bulk collection of phone-call records and e-mail traffic in its quest to find and stop terrorist plots against the United States. President Obama could continue a program that takes advantage of America’s technological superiority, meets the requirements of constitutional law, and has proven effective in stopping terrorist attacks. But, manipulated by intelligence leaks and stampeded by the demands of his anti-war base, he is likely to sacrifice national security in response to spurious claims of lost civil liberties.
In the wake of the September 11, 2001, terrorist attacks, the NSA established a program to trace phone calls and e-mails into the United States from suspected terrorists abroad. (One of us, John Yoo, judged the program to be constitutional as an official in the Justice Department in the months after the attacks.) The NSA already intercepts electronic communications abroad between foreigners in order to detect threats to U.S. national security and advance our foreign policy; that was the very purpose behind the establishment of the agency during the Cold War. To keep the intelligence agencies out of operations at home, however, the Foreign Intelligence Surveillance Act (FISA) allows only the FBI to eavesdrop on counterespionage and counterterrorism targets within the United States, after obtaining a special warrant.