The NSA Call-Tracking Program

I think it's safe to say that the liberal blogosphere is more shocked that USA Today is the paper to break an essential story than they are by the story itself: The NSA has been collecting the phone records of ordinary Americans for the past five years or so in a massive database with the full, willing knowledge of three of the biggest phone carriers - At&T, Verizon, and BellSouth.

Anyone who remembers Alberto Gonzales parsing his words carefully before the Senate about the NSA warantless wiretap program, and his refusal to answer a question about whether other hidden NSA programs existed, will not be shocked. Anyone who's been following this administration will not be shocked. President Bush defied logic today when he:

denied that the government listens to Americans' phone calls without court approval and maintained that citizens' privacy "is fiercely protected in all our activities."

"We are not mining or trolling through the personal lives of millions of Americans," Bush said. "Our efforts are focused on links to al-Qaeda and their known affiliates."

How al-Qaeda is targeted by casting a wide net over innocent Americans is beyond me. This is not a surgical strike we're talking about. This is a massive data collection effort. How this does not violate the 4th Amendment is also beyond me.

Not surprisingly, Glenn Greenwald has written the most superb early post on this matter (that I've read, anyway). I have no doubt he'll pen more, but he highlights the same two key elements that struck me. First, per the USA Today article, these guys use bullying tactics to get their way:

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.

A second, more important issue is raised by the next two paragraphs:

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.

As Greenwald incisively observes:

We continuously hear that the Bush administration has legal authority to do anything the President orders. Claims that he is acting illegally are just frivolous and the by-product of Bush hatred. And yet, as I detailed here, each and every time the administration has the opportunity to obtain an adjudication of the legality of its conduct from a federal court (which, unbeknownst to the administration, is the branch of our government which has the authority and responsibility to interpret and apply the law), it does everything possible to avoid that adjudication.

This continuous evasion of judicial review by the administration is much more serious and disturbing than has been discussed and realized. By proclaiming the power to ignore Congressional law and to do whatever it wants in the area of national security, it is seizing the powers of the legislative branch. But by blocking courts from ruling on the multiple claims of illegality which have been made against it, the administration is essentially seizing the judicial power as well. It becomes the creator, the executor, and the interpreter of the law. And with that, the powers of all three branches become consolidated in The President, the single greatest nightmare of the founders.

As horrendous as the situation in Iraq still is, as bad as the aftermath of Katrina still is, as dire as the fiscal mismanagement has been, I have long felt that it's the Bush administration's consistent, aggressive, and systematic assault on civil liberties, due process and the Constitution itself that represent the gravest and most lasting threat to our country. An assault on the law itself – and good, essential law at that – will be far harder to reverse than the other mistakes. It sets a horrible precedent. For god's sake, has anyone in this administration read The Federalist Papers?

There is absolutely no reason America cannot fight terrorism (and of course it should) within existing laws. There is absolutely no reason to bypass FISA other than to avoid oversight and accountability. If Gonzales wants to complain about the paperwork again, perhaps he should resign and allow someone who can handle the workload to do the job. If Bush cannot honor the oath he swore to "uphold the Constitution" he should do the same.

I predict this NSA story will be the dominant one at least until Monday, and that Bush's approval ratings will finally drop below 30% (most polls place him at 31% now, with a 3% margin of error). Certain issues deserve widespread public outrage and full disclosure, and this is one of them.