The Effects Of Drinking Too Much Kool-Aid

There is a remarkable opinion piece today in The Washington Post entitled "The Right Call on Phone Records". It is remarkable because the author, former Deputy Homeland Security Advisor and Deputy Assistant to the President Richard Falkenrath, has apparently taken leave of his senses.

The op-ed begins with this bizarre paragraph:

On Thursday, USA Today reported that three U.S. telecommunications companies have been voluntarily providing the National Security Agency with anonymized domestic telephone records — that is, records stripped of individually identifiable data, such as names and place of residence. If true, the architect of this program deserves our thanks and probably a medal. That architect was presumably Gen. Michael Hayden, former director of the NSA and President Bush’s nominee to become director of the Central Intelligence Agency. [Emphasis added by me]

When I read this, my initial thought was that the author was joking. But as I read through the rest of the fantasy piece I realized that Mr. Falkenrath was quite serious. I hope the remaining people at the top level of Homeland Security do not believe that a phone number is "anonymized" as Mr. Falkenrath appears to believe. If our senior leaders are this ignorant then we are in very serious trouble.  Here’s a little exercise for you, Mr. Falkenrath. Given the phone number 202-456-1414, how long will it take the NSA to find out whom this number belongs to? Ok, don’t hurt yourself. I will tell you. It will take them less then 23 seconds. Try it for yourself. Go to AnyWho and do a reverse lookup on 202-456-1414. Within seconds you will find that this phone number belongs to:

White House Switchboard Main Number

WASHINGTON, DC 20001

Very few career government officials possess the expertise, initiative and creativity needed to devise a system to penetrate such networks, using only existing statutory and presidential authorities, employing only existing technical and personnel resources, and violating the privacy of no American. Yet, if the USA Today story is correct, this appears to be exactly what Hayden did.

Some legislators and observers have questioned the legality of the alleged NSA domestic telephone records collection program. If the facts of the program are as reported in USA Today, there is every reason to believe that the program is perfectly legal.

There are, of course, strict legal limits on the ability of federal agencies such as the NSA to compel the provision of domestic information or to collect it secretly. The USA Today story, however, alleges that three telecommunications companies — AT&T, Verizon and BellSouth — provided it voluntarily. How else could one company (Qwest) decline to provide the information? Since there is no prohibition against federal agencies receiving voluntarily provided business records relating to their responsibilities, it appears that the NSA’s alleged receipt and retention of such information is perfectly legal.

Mr. Falkenrath must be patting himself on the back for his clever logical inversion here. It is a very nice argument to put the Government’s actions in the passive voice. To imply that the phone companies somehow left the phone records on the NSA’s doorstep and one fine morning General Hayden discovered these records as he went out for the morning paper is too clever an argument to sustain itself. Mr. Falkenrath ignores the fact the Government demanded these records from the phone companies without the required court orders. It went as far as to try to bully and blackmail Qwest into turning over the phone records. That kind of behavior hardly suggests that the NSA was a passive actor in this fiasco. Perhaps Mr. Falkenrath needs a reminder of the laws that were broken when the NSA demanded these records without a court order. You can read my layman’s analysis here or Professor Kerr’s analysis here and here.

Mr. Falkenrath concludes by putting in a plug for General Hayden for the CIA Director post. He also praises the can-do gung-ho attitude of General Hayden in contrast to the timidity of the rest of the bureaucracy:

Bureaucrats excel at finding reasons not to do something. They are most often guilty of sins of omission, not commission. A timid, ordinary executive might have concluded that it was too risky to ask U.S. telecommunications companies to provide anonymized call records voluntarily to an agency such as the NSA, dealing with foreign intelligence. If the USA Today story is correct, it appears that Mike Hayden is no timid, ordinary executive. Indeed, it appears that he is exactly the sort of man that we should have at the helm of the CIA while we are at war.

Mr. Falkenrath apparently does not understand that there is a difference between initiative and law breaking. The Constitution and the laws are there for a purpose. Choosing to ignore the laws does not make a good executive or a good nominee for the position of Director of Central Intelligence.

Mr. Falkenrath’s deeply flawed opinion piece should cause all citizens alarm. This opinion piece is a window into the thinking of some our top officials in Government entrusted with protecting us. The level of ignorance and incompetence demonstrated by Mr. Falkenrath may unfortunately be commonplace amongst the political appointees within this Administration. For exposing this level of incompetence, we all owe Mr. Falkenrath an enormous debt of gratitude.