Friday, May 12, 2006

More Questions About The NSA/Telecoms Relationship

The debate is on in Washington about what laws, if any, were broken--and by whom--in the course of conducting the NSA CATCH ALL part of the extra-legal warrantless eavesdropping program.

Some are saying the government may be off the hook constitutionally, while leaving the telecom companies exposed to criminal liability:

The U.S. government's secret collection of Americans' phone records may not breach the Fourth Amendment's privacy guarantee, legal analysts said Thursday, but it could violate federal surveillance and telecommunication laws...

A communication act dating to 1934 and more recent electronic privacy laws generally require phone companies to protect the confidentiality of customers' communication. "There really isn't any precedent for this kind of thing," said Lee Tien, a lawyer at the Electronic Frontier Foundation, which filed a class-action lawsuit against AT&T after the NSA's eavesdropping program was revealed in December. The suit accuses AT&T of helping the NSA spy on phone users.

In order to have legal cover, the telecom companies had better have something in writing, like the NSA does allegedly does with a United States Signals Intelligence Directive (USSID) signed by the president authorizing their participation in the program.

The bypassing of FISA is once again an issue:

Lawyers who specialize in national security and communications, in and out of government, said it is difficult to assess the legality of the program because some of its features remain unknown. The Foreign Intelligence Surveillance Act, enacted in 1978, requires a court order before the government can eavesdrop on the content of domestic calls or keep live track of the phone numbers dialed by a U.S. telephone. But it does not cover wholesale acquisition of call records after the fact.

Privacy laws restrict distribution of customer records to third parties, including the government, but there are exceptions. With a court order, a subpoena or a "national security letter" from the FBI, a telephone company may be compelled to hand over records of specified individuals. In other circumstances, the law may be murkier...

"The statutes weren't drafted with the dragnet approach in mind," said Orin S. Kerr, a George Washington University law professor and former Justice Department lawyer. "And if this happened, who committed the violation? Is it the government or is it the phone company? It's really not clear."

One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records -- and even the stored content of calls and e-mails -- because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request.

No one should expect the lawmakers on Capitol Hill to do much about the new revelations--despite assertions of a desire to reach the truth of the matter.

A report on extensive government collection of Americans' telephone data roiled Congress yesterday, with many Republicans rallying to the president's defense while one key GOP chairman and many Democrats called for hearings, new restrictions and the possible subpoenaing of telephone company executives...

"The first move by the committee will be to ask the [phone] companies to come in," Senate Judiciary Chairman Arlen Specter (R-Pa.) told his colleagues yesterday. "I am prepared to consider subpoenas" if executives do not appear voluntarily. Specter, who is Congress's most outspoken GOP critic of warrantless wiretaps of Americans, also said he would like to bring Attorney General Alberto R. Gonzales back to his panel for questions, "if it would do any good."

I wonder if Specter can be convinced to swear in the witnesses this time, unlike his gladhandling of Alberto Gonzales when the AG was called before the Judiciary Committee on this issue earlier this year.

Specter faces an uphill battle in any case:

Specter appeared to be on a collision course with Senate Majority Leader Bill Frist (R-Tenn.), who strongly defended President Bush's surveillance policies. "We'll discuss whether or not hearings are necessary," Frist told reporters. But Specter spokesman Bill Reynolds said the chairman ultimately decides which hearings are held...

But Senate Intelligence Committee Chairman Pat Roberts (R-Kan.) said Congress is adequately briefed and "calls for further oversight are unnecessary."

"To suggest that there's some sort of coverup is not correct, and the motivation of those who would suggest otherwise is obvious," Sen. John Cornyn (R-Tex.) said at yesterday's Judiciary Committee hearing where Feinstein and others spoke. "We need to be conscious of what's at stake: the security and safety of the American people."

Specter is still angry about Justice Department stonewalling of his investigation of how they handled the legal issues in the warrantless eavesdropping that was already revealed:

Some members of Congress also reacted angrily to the news that the ethics office at the Justice Department had been refused the security clearances necessary to conduct a planned investigation of department lawyers who approved N.S.A.'s eavesdropping.

Mr. Specter called the denial of clearances to the department's own investigators "incomprehensible" and said he and other senators would ask that the clearances be granted to employees of the department's Office of Professional Responsibility.

The extra-legal NSA warrantless eavesdropping program opens a whole bunch of questions about how the U.S. evolved in a short period of time into a national security state.

The upcoming confirmation hearings for General Michael Hayden to be the director of the CIA will, in theory, provide a perfect forum for addressing the pertinent issues. However, it can be guaranteed that Gen. Hayden will refuse to respond to such questions, citing national security.

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