Or How I Learned to Stop Worrying

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.

USA 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.