By Walter Pincus
Washington Post Staff Writer
Thursday, May 25, 2006
Civil liberties lawyers yesterday questioned the legal basis that Attorney General Alberto R. Gonzales used Tuesday to justify the constitutionality of collecting domestic telephone records as part of the Bush administration's anti-terrorism program.
While not confirming a USA Today report May 11 saying the National Security Agency has been collecting phone-call records of millions of Americans, Gonzales said such an activity would not require a court warrant under a 1979 Supreme Court ruling because it involved obtaining "business records." Under the 27-year-old court ruling in Smith v. Maryland , "those kinds of records do not enjoy Fourth Amendment protection," Gonzales said. "There is no reasonable expectation of privacy in those kinds of records," he added.
Noting that Congress in 1986 passed the Electronic Communications Privacy Act in reaction to the Smith v. Maryland ruling to require court orders before turning over call records to the government, G. Jack King Jr. of the National Association of Criminal Defense Lawyers said Gonzales is correct in saying "the administration isn't violating the Fourth Amendment" but "he's failing to acknowledge that it is breaking" the 1986 law, which requires a court order "with a few very narrow exceptions."
Kate Martin, director of the Center for National Security Studies, said, "The government is bound by the laws Congress passes, and when the attorney general doesn't even mention them, it is symptomatic of the government's profound disrespect for the rule of law."
Gonzales, in addition to mentioning the Supreme Court case on Tuesday, said there "is a statutory right of privacy" but "with respect to business records there are a multiple number of ways that the government can have access to that information," including issuing national security letters, a type of administrative subpoena.
King noted that the USA Patriot Act modified the law to permit counterintelligence access "to telephone toll and transactional records" to allow specific targeting of "a person or entity" by the FBI if the director certifies in writing to the service provider that a customer's information is relevant to an "authorized" terrorism or counterintelligence investigation.
Former deputy attorney general George J. Terwilliger III, a partner in White & Case LLP, said yesterday that he does not believe the 1986 law applies if phone numbers called are being collected "wholesale" without subscriber names or other identifiers.
While saying he does not know what the NSA program involves, Terwilliger said it appears a database of telephone records is being built so it can be queried in real time after a call between the United States and abroad related to a terrorist's phone is made to see what other numbers that U.S. phone had been used to call in the past.