NSA Surveillance: Not Really News To Those Paying Attention, Not Illegal, But Still A Matter of Concern

The major topic of discussion today has clearly been the data mining of cell phone records on numerous blogs and news sites. On the one hand, I share in the opposition to the concept of a government program which we cannot even evaluate because of the secrecy surrounding it. On the other hand, did anyone really think that their cell phone call records were secret items which the government couldn’t review with ease? This is exactly the type of thing which many of us blogged about during the Bush years. From May 11, 2006 USA Today reported:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

“It’s the largest database ever assembled in the world,” said one person, who, like the others who agreed to talk about the NSA’s activities, declined to be identified by name or affiliation. The agency’s goal is “to create a database of every call ever made” within the nation’s borders, this person added.

There’s one difference between the program under Obama compare to Bush. Obama is using the FISA courts and following the law, while Bush did not:

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible “dirty numbers” linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

“This is really a sea change,” said a former senior official who specializes in national security law. “It’s almost a mainstay of this country that the N.S.A. only does foreign searches.”

Of course being legal does not mean it is right. While I do prefer to see judicial oversight, there is a huge difference between true oversight and a rubber stamp.

In theory there is also Congressional oversight. The top Senators on the Intelligence Committee say this is to protect America:

The top two senators on the Intelligence Committee on Thursday defended the National Security Agency’s collection of Americans’ phone records after it was reported in The Guardian.

“It is lawful. It has been briefed to Congress,” Senate Intelligence Chair Dianne Feinstein (D-CA) told reporters at an impromptu news conference in the Capitol. “This is just meta data. There is no content involved. In other words, no content of a communication. … The records can only be accessed under heightened standards.”

“I read intelligence carefully. And I know that people are trying to get to us,” Feinstein said. “This is the reason we keep TSA doing what it’s doing. This the reason the FBI now has 10,000 people doing intelligence on counter-terrorism. This is the reason for the national counter-terrorism center that’s been set up in the time we’ve been active.”

“And it’s to ferret this out before it happens,” she said. “It’s called protecting America.”

Senate Intelligence Vice Chair Saxby Chambliss (R-GA) backed up Feinstein, saying, “This is nothing particularly new. This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this.”

I guess we can discuss this in thirty years when the information is declassified.

Personally I have no problem with the government seeking a warrant to obtain phone records (and more) regarding individual who they have reasonable cause to suspect of plotting acts of terrorism. Maybe there is even a chance that having these records did put them on the trail of a potential terrorist who they otherwise did not suspect. In a free society it is necessary to place limits on what information the government can obtain and it is necessary to have some degree of transparency about how the information is used, even if we must give up having one-hundred percent security to maintain liberty.