The NSA and the Phone Call Database
The biggest story that has slipped by me with my time worries lately (and thank God things are getting a little more normal today) is the blockbuster scoop by USA Today on the NSA and a newly revealed database:
The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.
The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.
No doubt you’re aware of it already – there has been a massive amount of comment (see here and here), but as always when I need to catch up on a big story, I look to Tom Maguire first:
If I had been forced to guess, I would have said that this is not legal, since (if I am recalling correctly the debate about the NSA warrantless program), even a pen trace that records only phone number called and not the content of each call requires a warrant. I have no doubt we will see commentary about the legal aspects soon enough.
As to the timing of this leak, can it be a coincidence that Gen. Hayden, who oversaw this while at the NSA, is meant to face Senate confirmation for his appointment to head the CIA?
Very interesting, and as I said, I’m woefully behind on this story…good commentary and/or links are, naturally, always appreciated…
A leaker reveals that the government has been collecting phone records of you and me. Is your reaction the same as with the previous revelations regarding the NSA, FISA, Valerie Plame, and Mary McCarthy:
a) prosecute the leakers because they revealed government secrets
b) prosecute the reporters because they used confidential information to disclose government secrets
c) excuse what the government did because it is tangentially connected to fighting terrorists
Is the public interest served when leakers and reporters reveal what would otherwise be unknown? And if so, should they be harassed or praised?
And what of the DoJ investigation into the NSA that was closed because the NSA didn’t grant them clearance to investigate? Seems pretty backwards, dunnit?
National Security Damaged by USA Today Article
The sources of this information have betrayed their country by exposing a classified program that was put into place to find terrorists.
peter, it’s a shame one of my regular readers so obviously lumps me in with the monolithic ‘right’. You choose to demagogue rather than note that I was ambivalent from the beginning about the NSA revelations. I have stated from day one (you can look it up) that the president’s program may have been illegal.
You know I try to avoid black and whites – and just because I link to or comment on a certain side of the debate doesn’t mean I endorse it.
My blog has a search function – you or anyone can use it to verify that I have hardly been a lapdog on this or any issue.
There are arguments to be made on both sides of most issues – and all I have said, definitively, on any of these matters is that Valerie Plame and her husband are celebrity-smitten publicity hounds who attempt to rewrite history with the help of a complacent left – and I don’t just assert it, I provide links to prove it (search for Hitchens Wilson, for a start).
As for the matter at hand, I’ll reserve judgement until I know more about it…
One more stand that I did take on these matters, come to think of it – I don’t know if the NSA program (the other one – not this latest database story) IS legal, but I think that it seems pretty obvious that those who have been briefed on the program think it’s helpful and if it takes a modification to FISA to put its legality above reproach, I think I can go there.
As to what may have been presidential lawbreaking, assuming there were illegalities, I have said that President Bush will not be impeached, nor would I support such an impeachment, because his violations, if any, were made in defense of this country in the post-9/11 environment, and not for reasons of personal paranoia (Nixon) or childish inability to avoid unsavory sexual antics (Clinton)…
Mark,
TPM has some interesting points today (snark aside):
Contradiction?
Reed Hundt, former FCC chair (who posts regularly at TPMcafe)
As to your question of whether leakers should be praised or vilified – obviously, one size doesn’t fit all. It’s a good thing when government wrongdoing is brought to light – but it’s a bad thing when good programs that should remain secret are revealed. I realize some of this is in the eye of the beholder – but some programs are secret because they need to be secret.
Leakers should follow the whistleblowing procedures wherever possible – there is a legal way to handle most of these concerns…
By the way, I’m with you on the “not supporting impeachment if he’s willing to amend FISA” line of thought, but he just wasn’t telling anyone about it until he was confronted about it. He should have been more proactive (one of my least favorite words since I worked in Corporate America, but it’s actually fitting in this case) and said “can we amend FISA?” before actually breaking the laws. I would have had much more respect for that at least, even if the left would have been jumping up and down about the 4th amendment or whatever the hell they felt like jumping up and down about…
Comrades,
Personally, I am not convinced that either of the NSA programs are illegal. There are simply far too many people and organisations trying to project their own agenda and politics onto this topic. As the cacophony has risen, it’s harder to find out exactly what the truth of the matter is.
Personally, I find the NSA programs far less objectionable that those of the various places I shop that record all of my purchase demographics and then SELL that data to OTHER companies. My bank, my grocery store, my hardware store, my gas station, the credit card company, the doctor and dentist, even the post office, the telephone company and my ISP all collect my data and sell it to interested parties.
Now we have video surveillance camers on public property monitoring our every move, seeing how we dress, who we speak with, where we stop and rest or what stores we peer into.
At least with the NSA, I am pretty sure my data isn’t being SOLD to anyone, and I am fairly certain that they are looking to actually protect me, rather than exploit me.
Of course, i could be wrong, but I see what the NSA is doing as a perfectly legitimate and legal surveillance operation, conducted within the scope of powers granted to the executive branch, and being used as designed to protect the nation during a time of war.
Other’s mileage may vary…..
Respects,
Gwedd
Mark: I didn’t mean to address my questions specifically to you – rather to anyone who wished to reply. I’m aware that you were ambivalent about the NSA spying and data-mining.
However, I think that it’s fair to say that most posters on this site have favored prosecuting leakers and reporters, and have been eager to excuse anything the administration did provided they put a “national security” label on it. My question is really whether the broad scope of the surveillance would cause anyone to look at people like Joe Wilson, Mary McCarthy, or the people within the NSA who revealed the FISA violations in a different light.
My real question, though, is to hear from dmac or steve or any of the other hard-core Bush supporters what actions by this administration would be so beyond the pale that there is a clear public interest in exposure (and hence an implicit endorsement of those who leaked and reported). If it isn’t an apparently limitless monitoring of domestic phone calls, what would it be? Martial law?
Is this new information? Didn’t we already know that there was a vast data mining operaton going on as part of the NSA program?
peter, thanks for the clarification – as I often say, we’re all friends here, occasional (or even frequent!) disagreements aside…
too many steves, indeed, we know there was data mining going on – I haven’t been able to get myself grounded in the details enough yet to say too much at this point, but I hope to follow up at greater length soon…
…”is to hear from dmac or steve or any of the other hard-core Bush supporters what actions by this administration would be so beyond the pale…”
I think we first have to answer the question: are we at war? At least from my limited perspective, I think we most definitely are – so what powers are to be granted to a President and his administration during wartime?
I think you feel that the atrocities on 9/11 are mostly a police matter – you obviously think many of these programs are illegal and should be curtailed immediately, if not altogether denied. Of course, I could be wrong about this assumption. If so, please elaborate on what you think is allowable in this realm.
The next election will determine what the majority of the country feels about this central issue – are we at war, or is this just an isolated act by a gang of criminals? It’s telling that the Dems scream and stomp their feet over issues such as this, but to date, they have not put forward what their definitive position is relative to intelligence gathering and surveillance.
I think that this lack of a coherent plan speaks volumes about their unwillingness to confront the issue head on – what do they think is allowable, in order to protect our citizens from wanton mass acts of murder, from a mostly – unseen enemy?
This short paper outlines the issues and subsequent actions taken quite a bit better than my blathering:
http://uspolitics.org/student/terrorism/terrorism.htm
Scroll down to Point #4.
Peter: I haven’t seen evidence that there is unlimited and wide-spread MONITORING of domestic communications, only number collection and pattern analysis. If such evidence were available, I would be nervous.
If there were ever any evidence that the Bush administration had improperly used this type of info to punish their political opponents, that would really do it.
I’m afraid that the Libby tempest-in-a-teapot doesn’t rise to that level–wilson is the one that should be prosecuted.
Also Rockefeller for his self-admitted TREASON before the Iraq invasion, Sandy Berger for his document theft, and a raft of similar Clintonista abuses.
I have not seen that from Bush, nor credible evidence of same.
1) I don’t think that we are at war, at least in the traditional sense of the word. War implies two state-controlled armies in a state of combat. There are other important distinctions between war and terrorism (finding targets for reprisal against terrorists is much harder than against countries; wars end in an armistice, and there is no way to know when the “war” on terror is over; terrorism is based on attacking civilians, and wars are generally based on attacking soldiers). Hence to call the fight against those who would attack us a “war on terrorism” uses a metaphor which is not always helpful. I don’t think that the place to look for answers is what we have historically done when fighting the Nazis or the VietNamese. Rather, I think one has to ask questions about what the best way is to fight this new threat, rather than how we have handled threats in the past which were only superficially connected to the current threat.
2) Hence it follows that the “powers (which) are to be granted to a President and his administration during wartime” may or may not be the same powers which ought to be granted in the fight against stateless organizations like Al Qaeda. This is a debate which ought to have occurred yet which was largely ignored.
3) I do not think that 9/11 was a “police matter,” just as the Pearl Harbor and Oklahoma City bombing were not a police matters. The scale of the attack and the nature of the perpetrators make this well within the jurisdiction of the federal government.
4) What should be allowable? In my opinion, the government should have the robust authority to wiretap, read emails, do “black bag jobs,” and use the rest of the arsenal of detection which has been used to fight spies, enemies, the Mafia, and garden variety criminals for decades. However, I do not think any of these activities should be executed without being supervised by a third party, whether a FISA court, an appellate judge, or whomever. There should be a provision for a grace period to enable “hot pursuit” while the necessary warrants are sought (whether this should be the 72 hours in the FISA law or some other period is for others to decide). I’m not familiar with a single instance of a prominent Democrat saying that any tools in the toolbox we can use against terrorists should be abandoned (except torture and rendition). Rather, the problem is that the Bush administration has ignored existing law, as well as the basic doctrine of separation of powers, to use its sole judgment in determining what can and cannot be done. The FISA laws were adopted precisely to prevent the types of warrantless and unsupervised surveillance which the NSA has conducted. If the Bush administration went to Congress and asked to change the laws: no problem. When the Bush administration ignored FISA because it couldn’t be bothered with following the Constitution: big problem.
The distinction between monitoring and “number collection and pattern analysis” is an open question. We don’t know how the data are used, or whether patterns which emerge from the data mining lead to people with headphones listening to conversations. Presumably the government is interested in something more than whether Americans are using all of their friends and families minutes. Since this is an administration which does not reveal what it does until it is forced to do so – and given its long history of ineptitude on things large and small – it is not unreasonable to suspect the worst.
Only if you suffer from BDS–I don’t. Again, show me the abuse before you convince me.
Perhaps you are OK with the fact that the government apparently maintains records of every phone call you have made in the past several years. You don’t know who has seen it, who is able to see it, what is done with the records, whether they are destroyed or kept permanently, or whether they are shared with people outside the government. Nobody from the administration has explained why they are monitoring phone traffic or what is done with the data which are being collected. If you are OK with giving a blank check to the government enabling them to compile whatever data they choose on everyone who lives here, then you are much more trusting of those in power than I am.
Are the data being abused by the Bush administration? We don’t know – information collected by the government has been abused by Nixon, J. Edgar Hoover, and others – but to assume that all of the information is used benignly gives too much leeway to an administration which, after all, has exposed a CIA agent as part of a political vendetta. If there are cases of abuse, they certainly won’t be revealed by the Bush administration. The reason that the Constitution provides for a separation of powers – and why existing law requires judicial consent – is that a second set of eyes provides some level of assurance that information collected by surveillance is not abused. The Bush administration deliberately ignored the law so that its actions would be known only to itself. If you are OK with a secretive and inept administration violating the law: you are far more trusting of those in power than I am.
Finally, whether or not abuses are taking place, there is clearly a chilling effect which emerges. If I had a relative or friend in Syria, Iran, or Saudi Arabia, I would think twice before picking up the phone. Why would I want to attract the government’s attention? There are long-standing American principles – honest and transparent government, the ability of citizens to go about their business without government intrusion, the separation of powers – which have been thrown overboard by this administration. You may be fine with that. Not me.
“repent, for the end is nigh!”
Repent? Me?
I live in a state of divine grace…
No, I meant the rest of us, after reading your last post. Just joshing on ya.
The Latest Leak
USA Today is reporting a new NSA program based on new leaks of classified information. Doesn’t that strike anyone the least bit odd?
“My real question, though, is to hear from dmac or steve or any of the other hard-core Bush supporters what actions by this administration would be so beyond the pale that there is a clear public interest in exposure (and hence an implicit endorsement of those who leaked and reported).”
Generally speaking, anything illegal. As for the leakers? The content of the leak is irrelevant to the fact they have broken the law and should be prosecuted. Extenuating circumstances should be considered following conviction.
Fair enough: the implication is that all leakers should be prosecuted, but only those whose revelations are not in the public interest should be incarcerated. I place a higher value on transparency of government than on the primacy of government secrets, and you weigh these differently. I believe that while the government should be accountable to the people, those who lead the government will use national security as an excuse to avoid scrutiny of things which would be embarrassing or unpopular, and have done so probably since George Washington slept there.
While the government has the legitimate right to prosecute those who reveal bona fide secrets – e.g., Geraldo Rivera showing troop locations in Iraq to Fox News viewers – I do not think that the revelation of any of the misdeeds of the Bush administration thus far fall into that category. It is inconceivable to me that the knowledge that the government monitors phone traffic would cause a terrorist to act any differently. Any terrorist smarter than a potted plant knows that his phone calls are likely to be intercepted – one would think this is covered in the first ten minutes of Terrorism 101. However, the knowledge that the people’s government is monitoring the people’s phone calls is of vital public interest.
Hmmm…. not to go to deep on this, but here are some additional thoughts on leakers/leaking: I’m pretty much with you on the transparency thing provided we agree it isn’t absolute, i.e.; that there are some things, mostly national security related, that must be kept secret. I also place positive value on those who work in government that discoverer something untoward or illegal, making that information known, and leaking can certainly be the method of choice. You could argue, and I would, that anyone that holds government office, particularly those who swear an oath to defend the country and uphold the Constitution, have an obligation to do anything they can to eliminate illegal government activity.
Now, in the spririt of checks & balances, I would argue that these same people, regardless of the information they leak, must be subject to prosecution if they violate the law. This provides a nice counter-balancing force that, hopefully, will eliminate, or diminish at least, weak, unproven (unprovable), and politically motivated cases.
I am somewhat stunned at all the new noise on this NSA stuff as I don’t see any appreciable difference between what we learned Wednesday and that which we already knew from the NYT last December. So, add my voice to those who have noticed this revelation comes about one week before the man in charge of the NSA program interviews for the vacant CIA job.
Agreed – I think the reason that this was such a big story this week is the apparent scale of the operation – unless you use Qwest, your phone records are now government property – the previous coverage made the monitoring sound opaque and distant, but when you find out that your own phone use is now part of a government database, you see things in a much different light.
Whether they are calling a priest or a 900 number, presumably over 90% of the population has had their calls recorded. That’s the difference.
The call database
The NSA call database: a summary. Initial ideas to counter-measure the evil doing of the agency and its enslaved corporations….