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.
To start with, Americans need not wait until November to halt the most massive invasion of individual privacy in the nation's history. Opponents of the program -- and many are sure to emerge in the coming weeks -- can seek two immediate remedies.
The first is the federal courts. Since virtually every American citizen is a victim of the NSA's program, the potential exists for a vast legal challenge to be mounted against the government. Surely, the American Civil Liberties Union and other civil-rights organizations already are studying how to proceed. A lawsuit is needed, challenging the NSA's data program and seeking an injunction to halt it.
No Supreme Court will risk the anger of Americans by sanctioning such an Orwellian program. And the reason is simple. If the NSA can compile phone-call data, it can compile data on every American's credit-card transactions, DVD rentals, Amazon orders and Google searches, and emails carried over America Online and the mail services of Yahoo, Microsoft and Google. Will a prolonged campaign against international terrorists prompt the people of this country to abandon wholesale all notions of privacy, the presumption of innocence and due process?
What if the NSA says its agents are using this data to only pursue "real terrorists"? What if the NSA says it would never, ever abuse the power of its position? How would we know? The only way is for the NSA to appeal to the special FISA courts, created by Congress, and seek authorization to investigate a specific person.
Legal attacks on the NSA program will probably take time to resolve; especially since Bush is denying the obvious -- that the program is illegal. In the meantime, a second form of resistance could come through legal attacks directly on the three telephone companies that are carrying out the NSA's illegal program. AT&T, Verizon and Bell South can immediately become targets of investigations with the state attorney generals of any number of states. States have jurisdiction over business practices within their borders. It is easy to imagine Elliot Spitzer, for example, scourge of corporate wrongdoing, convening a meeting to explore a wide-ranging investigation of whether executives at AT&T, Verizon and BellSouth are breaking the law in handing over phone data to the NSA on a wholesale basis.
Consumers may also want to get into the act by boycotting these telephone companies, beseiging them with complaints, or suing them. No one could blame a telephone company for giving away private data when presented with a bona fide court order. But these companies are reportedly giving over virtually all phone records on every American to the NSA as a matter of course. Such sharing suggests these corporations are blind to privacy concerns. That one telephone company, Qwest, rejected the government's request for phone records will add force to the legal cases against AT&T, Verizon and BellSouth.
President Bush is betting that Americans are willing to hand his government vast, unchecked powers over the most intimate data in their lives. That's a bet that Vice President Dick Cheney has long told Bush he can win. As the New York Times reported on Sunday, since 9/11 Cheney has advocated that the NSA should intercept purely domestic phone calls and emails. Bush agreed, taking a huge gamble, not only with the civil liberties of Americans but with his presidency. In the coming weeks and months, Americans will learn whether, once more, Bush has bet and lost.