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May 14, 2006 - Surprise! Making a List, and Checking it Twice

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Some days there are all sorts of news items that get buried by the big story of the day, but worth a comment. Thursday, May 11, was on of those days, with lots of interesting things happening, but getting short shrift as the attention of the nation was diverted by the one story that that pulled everything together - all the hidden worries about "what it all means" and where we are heading as a nation.

The big story was, of course, the news that the National Security Agency (NSA) has compiled a database of domestic phone-call records from data provided by the three biggest telecommunications corporations - AT&T, Verizon, and BellSouth. This would be a record of pretty much every telephone call made in America since sometime around a month or two after the events of September 11, 2001. We're talking around two hundred million people, and more than a billion calls. The NSA folks have the number called, the number placing the call, and the duration of each call, stored in what seems to be the largest database in the world - but they don't have any idea of what was said in any given call. That's not the idea. The idea is to run all sorts of data-mining algorithms against the data and look for patterns, but how that would work, and what patterns would show what, is hazy.

The probable is that this was done with no approval, other than the president authorizing the NSA to go for it. No court order or warrants - and no oversight - it was secret and congress, save for a few who were told not to talk, knew nothing of this - and it may be massively illegal.

The odd thing is the story broke in USA Today (the item is here), the paper known for its proud superficiality. The paper has been laughed at for three decades as the home of "MacNews" - the two paragraph item that covers the basics and then stops cold. Travel on business and it's the paper you find outside your hotel room door each morning, as it offends no one and the full-color weather page - with its cool four-color national map with all sorts of symbols and graphics, and with fancy text tables below - is impressive. Of course USA Today, as our only real national newspaper, not tethered to any one city or region, has its limitations - the biggest drawback that it has no attitude, no depth - no soul if you will. And they don't take positions, or even try. It's a paper for everyone and for no one in particular.

And they run this story? You'd think they were trying to be a real newspaper or something, with a big scoop and actual detail (lots of it). What's up with that?

And they hit the sweet spot with this story. The polls show the president's approval rating at near Richard-Nixon-resigns lows - those to the left of him outraged that he has basically claimed that no laws he finds inconvenient apply to him, no matter what the congress passes or has passed in the past, and no matter what the courts at any level have ruled, while his "core supporters" now have started to hate the guy, some on the immigration issue (no wall at the border and maybe the illegal folk could become citizens), and with the "economic conservatives" livid about the massive and record national debt, the record trade deficit, and all the federal spending well beyond anything the most liberal Democrat ever even proposed. The whole country sees the war as a mistake, or two-thirds of us now do, and know it was sold to us on either lies or incompetence or some weird idealistic self-delusion, and it's not only costing a ton of borrowed money, we're nearing twenty-five hundred of our troops killed and ten thousand maimed for life, and the world at best distrusts us and at worst hates us and we have no reputation or credibility or leverage left anywhere, and there's one scandal after another where big money moves around and this Republican or that gets rich and then gets caught, and there's the CIA leak thing where the president's main man, Karl Rove, may be indicted for perjury or obstruction of justice or both, just like the vice president's main man, Scooter Libby, was. The aborted Dubai ports deal, the petulant Harriet Miers nomination that blew up in his face. In the "pick a word" part of the polls people think about the president and come up with "stupid" and "incompetent." Things aren't going that well for him. And he's ticked off. It wasn't supposed to be this way.

This USA Today story just caps it all off. Do secret taps on the phones of foreigners, intercept all their email and check it out, and maybe you get a mulligan if you bypass all the specific laws that apply, as folks have quite nicely been made to be superbly frightened in the last four years. The FISA scandal, with those warrantless wiretaps, seemed okay to about half of the public. But keep a record of each and every phone call any of us has made in the last three or four years, and crunch the data this way and that, to see who's naught and who's nice? We're all suspects? The Thursday scoop in USA Today ticks off everyone, left and right. That newspaper did hit the sweet spot, or caught the wave, or gave expression to the zeitgeist, or whatever. Good timing.

And the USA Today made the other new stories of the day just subsets of the big picture. There was this - "The Senate gave final approval Thursday to a $70 billion election-year package of tax cuts that will extend lower rates for investors and also save billions for families with above-average incomes." Yep, the president's tax cuts get extended for a few more years. But the seventy billion pretty much goes only to those who earn more than a half-million a year. Those who earn less would have been considered, but there were a lot of arguments and no one could decide what to do about them, so that's for later, if they get to it. Nothing's perfect. Half-a-loaf is better than none? Those who didn't get their half-loaf outnumber those who did, by more than nine to one, and they vote. The USA Today item made the tax cut story just a subset of the big picture - the ordinary little guy doesn't matter, just trace his phone calls, and he gets no tax relief, as he's just a bother, and he won't mind either.

Other items fit the pattern, like this, no funding for the stressed-out vets coming home from the wars in Iraq and Afghanistan. What do they matter? Or this this - Iran thinks talk about the nuclear weapons thing a "possible." Ah, he doesn't matter either.

There's a pattern here. It's the "you don't matter" thing. Tell that to enough people often enough, and even to congress and the courts, and it gets on their nerves, not that it matters.

But it might matter a little, as the head of the NSA, the man who oversaw the development of and ran the "phone-call database," General Michael Hayden, has been nominated to head the CIA, and now there might be problems with that. Can the president just up and say the fellow is, as of say June 1, now head of the CIA - and the whole confirmation thing is unconstitutional anyway, as it places restrictions on his plenary power as commander-in-chief in wartime, or metaphoric wartime? What would congress do if he says it's just so, cry?

As for the NSA program as described in USA Today, they have all your phone records, but they won't confirm if your records are among those examined. And what will they do with them? No one knows, but the item says it's clear they probably they end up at the Pentagon.

It should be noted there was some pushback –


Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services - primarily long-distance and wireless - to people who live in Qwest's region. Therefore, they can provide the NSA with at least some access in that area.

... The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.


They didn't want their own Justice Department to know what they were doing because they were afraid that the lawyers there would will tell them that this is against the law. They didn't seek warrants from the FISA court for the same reason? It's the "you don't matter" thing, or, in this case, the law doesn't matter.

Curiously here is something from James Harper, Cato Institute's director of information policy studies and a member of the Department of Homeland Security Data Privacy and Integrity Advisory Committee, on this "phone-call database" –


It flies in the face of Fourth Amendment principles that call for reasonableness or probable cause. It is not reasonable to monitor every American's phone calling in a search for terrorists.

The program was not authorized by Congress and it flies in the face of Congress' intent when it de-funded the Total Information Awareness program because of concerns about the privacy consequences of 'data mining.'

'Data mining' for terrorism - the idea that searching through masses of data can find terrorist patterns or suspicious anomalies - is provably flawed. Probability theory shows that searching for extremely rare events or conditions using even slightly flawed formulae will return mostly false positives. In other words, investigators searching through data about millions of Americans for the very few terrorists will send themselves on wild goose chases after innocent law-abiding citizens, with only the slimmest chance of stumbling onto terrorists or terrorism planning.

It is no defense of the program to say that it only includes information about calls, and not the content of calls themselves. Traffic information is very revealing - it includes the times and frequency of Americans' calls to their doctors, psychologists, paramours, and priests. And there is no way to know whether this surveillance is limited only to telephone traffic information.

It is unlikely that authorities could restrict their use of a database of all Americans' phone calls. If it hasn't been put to new purposes yet, before long this database will be used for general investigative purposes. As we've seen in the past, surveillance powers given to government officials are ultimately used even for political purposes.

For these reasons, oversight is essential. But the secrecy that surrounds the NSA's domestic surveillance programs prevents Congress from debating the issues, prevents researchers and critics from testing the techniques, and prevents testing in the courts to determine whether the programs are lawful...


Other than that it's just fine.

A wrinkle is that this has come up before, as here you'll find a discussion of a whistle blower at AT&T who in early April alleged that AT&T was breaking the law, as he saw them set up special facilities for this illegal program. The idea was the courts should issue an injunction prohibiting AT&T from continuing this alleged wiretapping, and he filed a number of documents under seal, including three AT&T documents explaining how the wiretapping system worked. The administration invoke the rare "state secrets privilege" and stopped that nonsense. No evidence, no case.

Other curiosities?

There's this, two congressman saying "when the Attorney General was forced to testify before the House Judiciary Committee a few weeks ago, he misled the Committee about the existence of the program." Some might say he lied.

As for whether it's legal, this item covers just about every statute and code that applies. It doesn't appear to be legal.

But then the president says we shouldn't worry, and just trust him


President Bush today denied that the government is "mining or trolling through the personal lives of innocent Americans," as Democrats expressed outrage over a news report describing a National Security Agency program that has collected vast amounts of telephone records.

... Making a hastily scheduled appearance in the White House, Mr. Bush did not directly address the collection of phone records, except to say that "new claims" had been raised about surveillance. He said all intelligence work was conducted "within the law" and that domestic conversations were not listened to without a court warrant.

"The privacy of all Americans is fiercely protected in all our activities," he said. "Our efforts are focused on Al Qaeda and their known associates."


Right. And the New York Times item says that trust thing was not going so well –


Senator Arlen Specter, the chairman of the Senate Judiciary Committee, said he would call executives of AT&T, BellSouth and Verizon "to see if we can learn some of the underlying facts."

He said he would question them about "what we can't find out from the Department of Justice or other administration officials."

... "Are you telling me that tens of millions of Americans are involved with Al Qaeda?" Senator Patrick J. Leahy of Vermont, the committee's ranking minority member, asked angrily.

... "It's our government, our government!" he said, turning red in the face and waving a copy of USA Today. "It's not one party's government, it's America's government!"

... Senator Dianne Feinstein, the California Democrat who is a member of the Intelligence Committee as well as the Judiciary Committee, appeared to confirm at least the gist of the article, while stressing that what was under discussion was not wiretapping. "It's fair to say that what is in the news this morning is not content collection," she said.

Even so, she warned, "I happen to believe that we are on our way to a major Constitutional confrontation on the Fourth Amendment guarantees over unreasonable search and seizure."

... The anger among committee members carried over to a number of other related developments. Senator Specter said he was sending a letter to the Justice Department in response to a news report that an investigation by the Justice Department's ethics office into the lawyers who gave approval to the domestic surveillance program was abandoned because the investigators were refused the necessary security clearances.

"It's sort of incomprehensible that that was done," Senator Specter said, adding that he was asking that the clearances be granted so the review could continue.


So much for trust. It's the "you don't matter" thing. Tell that to enough people often enough, and even to congress and the courts, and it gets on their nerves.

On the other hand, this pro-Bush media review site offers this perspective


Seismic! Shocking! Startling! A bombshell! That's how the ABC, CBS and NBC morning shows described a front-page story in today's (Thursday's) USA Today that breathlessly touted how "NSA has massive database of Americans' phone calls." Like the TV coverage, USA Today's story insinuated that the existence of the database was a major violation of Americans' privacy rights and evidence that the President was lying last December when he described the NSA's eavesdropping on suspected terrorist communications as limited and targeted.

Today's article does not allege that any calls are listened in on. Indeed, as USA Today describes it, the program seems like a thoroughly innocuous database of the same information that appears on your phone bill, but with your name, address and other personal information removed. Given that another government agency - the IRS - maintains information on American citizens' employment, banking, investments, mortgages, charitable contributions and even any declared medical expenses, this hardly seems like a major assault on personal liberty.

ABC's Good Morning America's was the most over-the-top, as co-host Diane Sawyer breathlessly began the program: "New this morning: NSA bombshell. A new report that the government is secretly tracking your phone calls, seeking information on every call made in the U.S. The war on terror versus your privacy."


Then there's a discussion of the Diane Sawyer interview with the USA Today reporter, Leslie Cauley.

So maybe it's nothing.

Or you could, like Tim Grieve, look at it this way


Over the years, members of Congress have adopted, presidents have signed and courts have adjudicated all sorts of laws that are supposed to apply when the government wants to know about calls coming into and going out from a particular telephone number. The Electronic Communications Privacy Act of 1984 lays down some of the rules for obtaining that kind of information. Congress amended the Foreign Intelligence Surveillance Act in 1998 to set forth rules when the government wants the information in the context of foreign intelligence operations. And in 2001, the Bush administration proposed - and Congress approved - changes in the rules in the course of adopting the Patriot Act.

So what do we learn today? The Bush administration - without an act of Congress, without a ruling from the judiciary, without even the usual F-you of a signing statement - has written its own set of rules for gathering telephone records. Forget words like "subpoena" and "warrant" and "probable cause." Forget fine legislative calibration. Forget all that stuff about amendments and floor debate and compromise in conference committees. None of that matters now. Under the Bush administration's rules, the NSA gets access to every single phone record it can persuade anybody to give it.

What is the government doing with the phone records? Well, we don't know, and we don't really have any way of finding out for sure. The president said today that his administration isn't "mining or trolling through the personal lives of millions of innocent Americans." OK, but isn't it "mining or trolling" through the data? And if it isn't, why has it gone to the trouble and expense of collecting that data at all?

How is the government safeguarding the information? Well, we don't know that, either. Imagine for a moment that an FBI agent investigating a kidnapping wants to see who has been calling you.

The Electronic Communications Privacy Act sets forth the safeguards to be observed before the agent can get the records from a phone company. But now that the NSA has all the records, can the agent simply search through them to find what he needs without getting anyone's approval first? Now imagine that the would-be searcher isn't an FBI agent investigating a crime but a Bush administration official doing some research on a political opponent. Can he run a search through the records, too?

Maybe it's safe to assume that the answer in both cases is no. But the thing is, we shouldn't have to assume. And if we still had a government that operated in the way the Framers imagined, we wouldn't have to. The checks and balances would guarantee it. We'd know that the executive branch was obeying the laws that Congress adopted because it wouldn't have its hands on phone records until a court approved a request and a telephone company complied with it.

It's not like that now. Unless you're lucky enough to live in an area served by Qwest, the NSA apparently already has computer files showing every telephone call you've made or received over the last few years. Maybe the NSA won't look at your calls. Maybe it won't let anyone else do so, either. But you don't know that right now, do you? Sen. Arlen Specter says he's going to hold hearings, and maybe Alberto Gonzales or Michael Hayden or someone from the NSA will appear and say - once again - that innocent Americans have nothing to worry about here. Maybe you'll trust them. Maybe you won't. But at the end of the hearing, those will pretty much be the extent of your options.


Or like Glenn Greenwald, you could look at it this way


[T]he administration's principal political defense was to continuously assure Americans that they were eavesdropping only on international calls, not domestic calls. Many, many Americans do not ever make any international calls, and it was an implicit way of assuring the heartland that the vast bulk of the calls they make - to their Aunt Millie, to arrange Little League practice, to cite just a few of the administration's condescending examples - were not the type of calls being intercepted. The only ones with anything to worry about were the weird and suspect Americans who call overseas to weird and suspect countries. If you're not calling Pakistan or Iran, the Government has no interest in what you're doing.

That has all changed. We now learn that when Americans call their Aunt Millie, or their girlfriend, or their psychiatrist, or their drug counselor, or their priest or rabbi, or their lawyer, or anyone and everyone else, the Government is very interested. In fact, they are so interested that they make note of it and keep it forever, so that at any time, anyone in the Government can look at a record of every single person whom every single American ever called or from whom they received a call. It doesn't take a professional privacy advocate to find that creepy, invasive, dangerous and un-American.


One the other hand, see Republican Senator Jon Kyl of Arizona here - "This is nuts. We are in a war and we've got to collect intelligence on the enemy, and you can't tell the enemy in advance how you are going to do it. And discussing all of this in public leads to that."

Folks should shut up? Perhaps.

Jack Cafferty on CNN didn't shut up (video here) –


We all hope nothing happens to Arlen Specter, the Republican head of the Senate Judiciary Committee, cause he might be all that stands between us and a full blown dictatorship in this country. He's vowed to question these phone company executives about volunteering to provide the government with my telephone records, and yours, and tens of millions of other Americans.

Shortly after 9/11, AT&T, Verizon, and BellSouth began providing the super-secret NSA with information on phone calls of millions of our citizens, all part of the War on Terror, President Bush says. Why don't you go find Osama bin Laden, and seal the country's borders, and start inspecting the containers that come into our ports?
The President rushed out this morning in the wake of this front page story in USA Today and declared the government is doing nothing wrong, and all this is just fine. Is it? Is it legal? Then why did the Justice Department suddenly drop its investigation of the warrantless spying on citizens because the NSA said Justice Department lawyers didn't have the necessary security clearance to do the investigation. Read that sentence again. A secret government agency has told our Justice Department that it's not allowed to investigate it. And the Justice Department just says ok and drops the whole thing. We're in some serious trouble, boys and girls.


Maybe so, but "the decider" has his own troubles, as his saying "you don't matter" and "trust me" isn't working that well. At the end of the president's long day, new poll numbers, showing approval of him had dropped under the imagined floor, to twenty-nine percent


President Bush's job-approval rating has fallen to its lowest mark of his presidency, according to a new Harris Interactive poll. Of 1,003 U.S. adults surveyed in a telephone poll, 29% think Mr. Bush is doing an "excellent or pretty good" job as president, down from 35% in April and significantly lower than 43% in January.

Roughly one-quarter of U.S. adults say "things in the country are going in the right direction," while 69% say "things have pretty seriously gotten off on the wrong track." This trend has declined every month since January, when 33% said the nation was heading in the right direction. Iraq remains a key concern for the general public, as 28% of Americans said they consider Iraq to be one of the top two most important issues the government should address, up from 23% in April. The immigration debate also prompted 16% of Americans to consider it a top issue, down from 19% last month, but still sharply higher from 4% in March.


The data were collected before the USA Today item had been published.

We live in interesting times. The man cannot be happy. Who knows what he'll do now?

Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik

The inclusion of any text from others is quotation for the purpose of illustration and commentary, as permitted by the fair use doctrine of U.S. copyright law.  See the Legal Notice Regarding Fair Use for the relevant citation.
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