Inspector ClouseauUSA Today reported this morning that the National Security Agency has been collecting phone records of tens of millions of ordinary Americans with the willing cooperation of the phone companies (except Quest which refused to hand over records without a court order). This disclosure caused an irritated President Bush to make a brief statement this morning. I quote the statement in its entirety:

After September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack. As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. In other words, if al Qaeda or their associates are making calls into the United States or out of the United States, we want to know what they’re saying.

Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing.

First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities.

We’re not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we’ve been very successful in preventing another attack on our soil.

As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy. Our most important job is to protect the American people foreign another attack, and we will do so within the laws of our country.

Thank you.

You will notice that the President does not deny the facts of the USA Today story. He also specifically notes that the Administration’s "international activities" strictly target al Qaeda. He leaves open the possibility that domestic activities cast a much wider net. He also notes that the Administration is "not mining or trolling" through the "personal lives" of Americans. Mr. Bush is parsing very hard here to make a distinction between personal lives and personal records. The distinction is between contents of a phone conversation and records of a phone conversation. That distinction allows Mr. Bush to escape the clutches of the 4th Amendment.

However, this new NSA spying disclosure does violate at least one and perhaps two laws enacted by Congress. Where FISA does not apply, access to phone records are covered by the "pen register" or "trap and trace device" laws. The two relevant laws are 18 U.S.C. §§3121-3127 and 50 U.S.C. §§1841-1846. In order to get the phone records of a "U.S. person" the Government must get a court order. If the Government is arguing that they need the order for foreign intelligence or terrorism related activities and the information does not concern a "U.S. person", the Government must also get a court order. In both cases the application for the court order must show that the information requested is "relevant to an ongoing criminal investigation" or is "relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities". In the case of a foreign intelligence investigation, there is a provision for an emergency authorization where the Attorney General can approve the gathering of information without a court order provided that an application is made for an order within 48 hours. There is also a provision in the law that states that in a time of war the President can authorize the collection of phone records without a court order for up to 15 calendar days following a declaration of war by Congress. There is also a requirement for the Attorney General to make detailed annual reports to Congress regarding collection of U.S. persons’ phone records and a requirement for the Attorney General to make detailed semi-annual reports to the "Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate" regarding collection of phone records related to foreign intelligence or terrorism.

The Bush Administration is almost certainly violating the law by not getting the required court orders. If the program is as widespread as has been reported the Administration would have had to apply for and receive tens of millions of court orders. The Bush Administration may also have violated the Congressional oversight requirements of the statutes. Judging by the reaction in Congress today it appears that Congress was not fully briefed by the Administration.

The argument from the Administration will probably again be reduced to a defense on the President’s alleged inherent Article II powers as Commander-in-Chief during wartime. The President will argue that the Constitution gives him inherent authority to violate duly enacted laws in his capacity as Commander-in-Chief. This is a flimsy argument at best and is quite easily debunked. In the end the Administration is left with no Constitutional leg to stand on.

When the law and the Constitution are not on his side, the President can, in the final analysis, rely upon the Republican controlled Congress to turn a blind eye once more.