Inventing abuse: if the administration isn't violating civil liberties in its pursuit of terrorists, some people will say it is anyway

National Review, June 5, 2006 by Stephen Spruiell

AFTER USA Today reported that the National Security Agency had collaborated with three U.S. phone companies to construct a database of domestic phone records, critics fell all over one another denouncing the program. They called it, among other things, "a vast and unchecked intrusion on privacy" and "the Bush administration's most egregious abuse of power to date."

The criticisms stand on two basic principles. First, while programs to prevent terrorist attacks are desirable, the privacy of innocent Americans must be protected at all costs. And second, although the Constitution gives the president the duty to protect the country from foreign threats, any act of the legislature may circumscribe his constitutional authority to do so.

Neither principle is in fact violated by the NSA phone-data program. So, stuck with a weak argument, critics of the program have had to invent all kinds of hypothetical ways in which the database could be abused. But they have yet to provide any evidence that it has been abused in the past, or to give a compelling reason for believing it will be abused in the future.

Most of what we know about the program comes from the USA Today article of May 11. The paper reported that shortly after 9/11, the NSA began working with three phone companies--AT&T, BellSouth, and Verizon--to create a database of phone records in which the agency could look for patterns. The process is called linkage analysis, and corporations Mr. Spruiell writes the media blog for National Review Online. do it all the time in order to find patterns in consumer choices. The NSA wanted to use this technology to look for networks and possible linkages associated with phone numbers discovered during investigations of terrorist activity.

According to USA Today, the three participating phone companies (a fourth--Qwest--refused, citing legal concerns) deleted "names, street addresses, and other personal information" from the phone records they provided to the NSA. The NSA does not listen to or record the content of any purely domestic phone call; it simply enters phone numbers--and the linkages among them--into a massive database.

Critics argue, specifically, that the program violates the Fourth Amendment's protection against unreasonable government intrusions of privacy; and they point to a number of federal communications laws that they claim the NSA or the phone companies violated when they agreed to share domestic phone records.

On the question of whether this program has violated anybody's constitutional right to privacy, there seems to be broad agreement that the answer is no. "This was considered by the Supreme Court in Smith v. Maryland," says Robert F. Turner, associate director for the Center for National Security Law at the University of Virginia. "This issue has already gone to the high Court and been settled." In Smith, the Court ruled that information voluntarily provided to third parties is not protected by the Fourth Amendment. "We doubt that people in general entertain any actual expectation of privacy in the numbers they dial," the Court said. Explains Turner: "The [NSA is] not listening to anybody's phone call. They're trying to figure out what phone numbers are connected to other numbers that are tied to terrorists."

The second question--whether this program has violated any federal communications laws forbidding phone companies to give this kind of data to the government--is more complicated, but evidence points to the conclusion that no laws were broken. Congressman Pete Hoekstra, the Michigan Republican who chairs the House Intelligence Committee, was briefed on the program, and so were other key members of Congress. Hoekstra tells NATIONAL REVIEW that "on a bipartisan basis, as the leadership of the intelligence committees and the leadership of the House and Senate reviewed this program, obviously we didn't think there were any violations of the law."

George Terwilliger, who served as deputy attorney general in the George H. W. Bush administration, spoke more specifically about the statutes in question. "I think it's fair to say that the statutes contemplate the transfer of this generic type of data much more on a case-by-case rather than a wholesale basis," he says, meaning that the statutes call for a court order only in cases when the government is making a targeted request for information. But, he adds, "I don't see anything in the statute that forbids such a wholesale turnover."

Others, such as former Bush administration Justice Department spokesman Mark Corallo, argue that the statutes don't apply in this particular case because the legislature cannot encroach upon the president's constitutional authority to intercept enemy communications in a time of war. "The fact is that, in this case, no statutes apply," Corallo says. "It's the constitutional authority of the president. We are at war, and the president has the authority to gather intelligence to repel foreign threats. It goes back to the beginning of the Republic--the Supreme Court has just never held that the president doesn't have that authority."