The revelation of two anti-terrorism programs has set off a firestorm, but it is important to distinguish between the two and understand what is at issue is each of these. I will address the Verizon program here and look at the so-called PRISM program in a separate post.
As to the Verizon call-record collection, there, frankly, is nothing illegal or extraordinary. The actual calls are not monitored and before any specific person’s pattern of calls or the content thereof can be surveilled, probable cause and individualized suspicion must be articulated to a Foreign Intelligence Surveillance Act (FISA) court. The entire program is under the auspices of the FISA court, and permission to continue the program must be renewed every three months. The Senate and House intelligence committee members have been fully briefed. According to House Intelligence Committee Chairman Mike Rogers (R-Mich.), the program helped break up a significant terrorist plot.
Former federal prosecutor Andy McCarthy explains:
Telephone record information (e.g., the numbers dialed and duration of calls) is not and has never been protected by the Fourth Amendment. The Supreme Court held as much in its 1979 Smith v. Maryland decision. Understand: the phone record information at issue here is very different from the content of telephone conversations. Because the latter involve higher privacy expectations, they are heavily regulated under not only the Fourth Amendment but both Title III of the federal penal code and the Foreign Intelligence Surveillance Act (FISA). Under these laws, the government is not permitted to access communications content absent court authorization based on probable cause either that a crime has been committed or that the surveillance target is an agent of a foreign power (such as a terrorist organization or a hostile government).
But in fact in this case the government went above and beyond the Constitutional minimum (no protection). McCarthy again:
The Court’s role is to establish the constitutional floor, but Congress has the power to enact protections that go beyond the Constitution’s. It has done so in this area of the law – requiring the government, for example, to go to a court to for an order to set up pen registers (the device at issue in Smith v. Maryland), to go to the FISA Court for permission to get certain business records, etc. Because the records are not shielded by the Constitution, Congress has not required the executive branch to prove that it has a legitimate law-enforcement or national-security reason; but it has required the executive to make representations that the records are sought for a legitimate reason and it has exercised oversight to discourage the executive from abusing its power.
Why can’t you just tell the American people all about this? Why do we need to do it in the first place? The answer to the latter question makes the first query look ridiculous. As has been explained elsewhere, if the government has the entire array of phone records it can devise methods of detecting unusual patterns, saying a blip in calls to Yemen. With that it can narrow in on potential plots and plotters and, if need be, get a warrant to look at the content of the calls. Until this leak the bad guys didn’t know about it. That has prevented them from taking evasive measures; once they know that the volume of calls can be assessed easily, they can take measures to limit calls, make calls from other countries, etc. There really is a reason the program was classified.
It is disturbing that not only journalists but also law makers are ignorant as to what is at stake. Sen. Mike Lee (R-Utah), a former Supreme Court clerk, should know better than to send an hysterical e-mail claiming that “The Fourth Amendment safeguards liberty by protecting against government abuse of power. Overzealous law enforcement, even when well-intended, carries grave risks to Americans’ privacy and liberty. . . . The abuses resulting from this court order illustrate the reasons why I have opposed, and continue to oppose, controversial provisions of the PATRIOT Act and the FISA Amendments Act that are inconsistent with the Fourth Amendment.” Again, the Fourth Amendment is not at issue here and Lee should know better.
Yes, the leak should be investigated, but so should Leon Panetta’s alleged “good leaks” about the Osama bin Laden raid. The law does not distinguish between leaks that help President Obama politically and those that do not.
Obama is not altogether blameless in creating the furor. As the Wall Street Journal editorial board put it, “The NSA is collecting less information than appears on a monthly phone bill (no names), but Americans would worry less about the government spying on them if, for example, the Justice Department wasn’t secretly spying on the Associated Press and Fox News. Or if the IRS wasn’t targeting White House critics. Or if the Administration in general showed a higher regard for the law when it conflicts with its policy preferences.”
However, much as I am tempted to join the furious chorus howling at the White House, I have to be content with calling the president a hypocrite. He vilified anti-terrorism programs in the Bush era, but as president he’s now turned on a dime. That’s fine — we all can be enlightened – but it is dishonest and craven to keep vilifying his predecessor and refuse to acknowledge that the Bush administration acted within the confines of the law. As to the hysteria, Republicans who claim to be strong on defense should stop encouraging the uniformed chatter.