Big Brother's Secret Calling Plan

With the revelations last Thursday in USA Today that the National Security Agency has compiled a vast database of every telephone call made in the United States, President George W. Bush is now fighting a new, bitter, political battle. The shocked reaction to the program by members of the U.S. Senate, including from some Republican members, even suggests that impeachment proceedings could be brought against the president should Democrats gain a majority in November.

The NSA program is a clumsy, brittle subterfuge. The agency, which is allowed to spy on international phone calls, isn't spying on purely domestic calls; rather, it is only compiling a list of these calls in order to "data mine," or analyze them. The president, in a hasty and brief press encounter on Thursday, insisted that all of the NSA's actions are legal and pointedly did not deny the USA Today report.

But justifying NSA spying on purely domestic phone calls on the grounds that the agency is merely compiling records of the calls is spurious. The NSA is expressly forbidden from spying on American activities within the boundaries of the United States. This prohibition against spying includes any investigation of American citizens. If compiling the purely domestic telephone calls of Americans is kosher, why can't the NSA go to Netflix and ask for every American's DVD rental records? Or why can't it ask Amazon.com for records on book shopping? Or go to Google and ask for a "compilation" of searches by Americans, or Bank of America for the bank records of every American?

Of course, the NSA can't make such requests. Compiling such data, on a blanket basis, is against the law. The NSA has no authority to either compile such data bases or mine them.

Law enforcement has long worked effectively without unbridled investigatory powers, and there is no reason to believe that even the NSA needs expanded powers of investigation.

U.S. law clearly allows for the investigation of Americans by the FBI, state and local police and various other agencies. But these investigations must follow clear rules of procedure and eventually require a court order. Fruitless investigations must be closed, and targets of fruitful investigations sooner or later must have the chance to examine the evidence against them.

None of these safeguards apply in the NSA program, which USA Today reporter Leslie Cauley described in great detail. "It's the largest database ever assembled in the world," one source told the newspaper. The source added that the NSA's goal is "to create a database of every call ever made" within the nation's borders.

There is nothing, absolutely nothing in the NSA's legislative charter that sanctions such a program. Congress, which each year approves the NSA's budget and each year authorizes its activities, has never approved any such program of domestic spying.

And indeed, the NSA program amounts to spying. President Bush's defenders surely will argue that the agency isn't spying on Americans but merely compiling data. However, the data being compiled is typically available to law enforcement only when authorized by a court. There is no court in the United States that ever has approved of such a large-scale surveillance program.

Which brings us back to President Bush. Just a day after a new CBS/Times poll found his approval ratings at all-time lows -- and as low as ever registered for any president -- Bush faces another grave crisis. In a long list of impeachable offenses, from lying about Iraqi WMD to prisoner torture to issuing executive orders declaring his plans to disregard provisions of new laws, Bush's creation of a purely domestic spying program may be the most flagrant. Of course, the Republicans may hold on to the Senate, and Bush then will escape impeachment. But the president will not escape the wrath of the American people and the force of American law.