May 12, 2006

5/12: What Hasn't Been Said Already

As the NSA story stretches into day two, it's worth asking whether bloggers have anything new to add to the debate. The Blogometer's answer is definitely yes, and begins today with a look at what the blogosphere's legal minds are saying about the phone-record program. The rest of the blogosphere reaction is often predictable, but it's still noteworthy to see which Dems the lefty bloggers specifically call to action and which righty bloggers express misgivings about the Bush admin's actions. Also today, righty bloggers aren't crazy about early reports on the Senate immigration bill and Sen. John Kerry (D-MA) mends his relationship with the lefty 'sphere.

They may not like the conclusion, or they may feel that the laws themselves make no sense. But the early blogosphere consensus is that the NSA program revealed by USA Today 5/11 is probably legal.

From the right Orin Kerr at The Volokh Conspiracy: "My still-very-tentative bottom line: The companies were probably violating the Stored Communications Act by disclosing the records to the NSA before the Patriot Act renewal in March 2006, although the new language in the Patriot Act renewal at least arguably made it more likely that the disclosure was legal under the emergency exception. ...First, let's update the facts. It now looks relatively clear that the NSA was not directing the telephone companies to conduct any particular monitoring on the NSA's behalf. Rather, NSA officials were persuading the telephone companies to voluntarily disclose their call records to the government. In other words, the government wasn't actually doing the monitoring, but instead was encouraging the telephone companies to disclose call records to them that the telephone companies already had collected."

From the left Marty Lederman at Balkinization: "After a bit more reflection, and as explained below, I think it's safe to say that at least some of the statutory arguments against the program might not be as strong as they first appeared -- depending on the particular details of the program, which we of course do not know. ...The upshot of all this is that the NSA appears to have induced certain telecom providers to violate 18 USC 2702(c) and 47 USC 222. Nevertheless, it also appears, at least at first glance, that our phone records are hardly secure from being added to government databases: The government may in fact quite easily and lawfully obtain our phone records for purposes of investigating terrorism, if only the FBI Director makes the fairly modest certification prescribed in 18 USC 2709."

There were some dissenters however. Lefty Kate Martin at ACSblog: "Such surveillance, if not authorized by the FISA court, is illegal. Depending on how it was conducted, it may also have been a crime. ...It is illegal for the NSA to obtain records of phone numbers from the telephone companies unless the FISA court authorized it. The Stored Communications Act prohibits the telephone companies from disclosing such information to the government unless they receive a subpoena or a court order for the records. 18 U.S.C. 2702(c), 2703 (c). ...If the NSA used a pen register or trap and trace device in real time, it was required to obtain an order from the FISA court, either under the specific pen register provisions, 50 USC 1841 et seq. or under the provisions for electronic surveillance generally, 50 USC 1801 et seq. ...While the law provides several means for the government to obtain records showing what phone numbers were called or dialed by a particular phone number, in every instance, either a subpoena or court order is required. It appears that the NSA obtained the records of millions of Americans without having the required court order."

Also on the left Glenn Greenwald at Unclaimed Territory points out a big distinction missed by Martin, but thinks the distinction the law makes is nonsensical: "Everyone seems to agree that even with the changes effectuated to FISA by the Patriot Act, the Government is still required to obtain approval from the FISA court in order to use pen registers It is true that, strictly speaking, at least based on what we know, the Government has not used pen registers here. They didn't need to. Instead of collecting this information telephone-by-telephone, they just skipped the whole pen register annoyance and had the telecommunications companies give them all of that information for every phone. Still, it is hard to imagine (at least for people acting in good faith) how it could be illegal for the Government to use a pen register device without a court order for a single phone (it appears clear that that is illegal), but it is perfectly legal for the Government to obtain pen register information for everyone's phone in the country without bothering to obtain a court order of any kind."

Many bloggers also picked up on legal analysis at the tail end of the Washington Post's item on the program:

"One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records -- and even the stored content of calls and e-mails -- because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. "It is within their terms of service because you have consented to that," the lawyer said. If the company also consents, "and they do it voluntarily, the U.S. government can accept it."

Lefty The Anonymous Liberal cites that passage and concludes: "The NSA is not relying on court orders or administrative subpoenas, but rather the voluntary cooperation of the telecom companies. And those companies in turn must be relying on some sort of consent theory with respect to their customers; otherwise they would appear to be in violation of both the Communications Act and the Stored Communications Act, if not other statutes as well. ...Are these companies really confident that this consent theory will stand up to legal scrutiny? Who knows."

Not all bloggers had time for the legal details. Mcjoan at DailyKos: "The domestic warrantless wiretapping carried out by the NSA since September 11 was done outside of FISA, outside of the law. To quote Rep. Ed Markey, "The NSA stands for Now Spying on Americans."

Lefty bloggers were quick to point out that Pres. Bush's 5/11 statement did not dispute the facts in the USA Today story. Under a header "NON-DENIAL DENIALS" lefty Matthew Yglesias at TAPPED writes: "To be generous, I guess he was denying that collecting, storing, and analyzing all this information amounts to "mining or trolling" through people's "personal lives." This cavalier view of privacy comes, of course, from an administration that's been second to none in terms of desiring to keep its own dealings secret." Taylor Marsh seconded the notion: " I'm with Yglesias on this one. It's a big fat non-denial denial."

Many lefties demanded that Dems use the story to take down Gen. Michael Hayden's nomination for CIA/Dir. The Left Coaster calls out Sen. Dianne Feinstein (D-CA) by name while TheBlaz at DailyKos has a list of questions Dems ought to ask at the hearing. Jane Hamsher at firedoglake wants her readers to call their Reps. and urge support of Reps. John Conyers' and Jane Harman'sLISTEN Act .

Georgia10 at DailyKos gives kudos to Sen. Russ Feingold (D-WI) for his leadership on privacy issues: " But where most Republicans, including the President, want to sweep such scandalous programs under the rug, Democrats have been trying to conduct at least some oversight when the privacy of Americans is at stake. Take S. 1169, the Data-Mining Reporting Act of 2005, introduced by Senator Feingold. Or how about the Data-Mining Moratorium Act of 2003."

Left of center, but still favorite the whipping boy of most lefty bloggers, Bull Moose thinks lefties are overstating their case: "As of yet, there is no evidence that the government was eavesdropping on private conversations of innocent citizens. What we know is that it is a collection of phone numbers that were put into super computers to detect patterns of suspect activity. The Bushies were not using information to destroy their political opponents. The NSA is legitimately obtaining data to thwart terrorists. ...Keep in mind that great Democratic Presidents such as FDR, Truman, JFK and LBJ approved and implemented far more intrusive intelligence programs in the interest of national security."

Righty John McIntyre at RCP Blog picked up on the show-me theme: "Show me the real alive Jane and Joe Americans who have had their liberties violated in some grotesque manner by the Patriot Act. ...I ask the same question today to the bloggers and pundits out there who are hyperventilating over the latest revelation that our security agencies are actually trying to do their job. Many of the people decrying these violations of civil liberties are the same ones who ripped the government for its inability to "connect-the-dots" prior to 9/11."

Righty Powerline looks at Qwest's privacy policy and advises the left to rethink their newest love affair. Quoting from the policy: "As a general rule, Qwest does not release customer account information to unaffiliated third parties without your permission unless we have a business relationship with those companies where the disclosure is appropriate." Powerline then quotes a reader: "Moral of the story: Those hot and bothered by the telephone call database mining program don't know or appreciate what telephone companies do all the time for their business purposes or the purposes of their business partners." Powerline: "Great point. And wasn't there a big news story just a couple of months ago about the fact that, for a nominal sum, you can buy anyone's cell phone records? In fact, liberal bloggers tried to put together a plan to buy and analyze the telephone records of prominent Republicans in hopes of finding calls that would somehow be embarrassing."

Many on the right accused the MSM of overhyping the story. NewsBusters has a thorough rundown of all the network coverage and asks, "But is this even news?" Orin Kerr at The Volokh Conspiracy thinks it is:

"As I see it, this story is really new, and is pretty different from the earlier NSA domestic surveillance stories from December and January. The earlier stories involved governmental tapping of telephone calls and e-mails when one party was outside the United States. That is, they involved the NSA recording the telephone calls and e-mails of people inside the United States from switches inside the United States when the other participant was outside the United States. Further, it seems that the government sharply limited that monitoring to a few hundred or a few thousand people, and only tapped calls when it had something like probable cause."

"Today's story is different. As best I can tell, it involves telephone companies disclosing account records of how their domestic customers were using their phones. In other words, the phone companies were disclosing lists of numbers dialed for domestic telephone subscribers to the NSA, rather than letting the NSA install switches and listen in on international calls. Further, they were doing this on a much larger scale: the disclosures were not pursuant to probable cause or reasonable suspicion. We don't know all the facts yet, but this looks new to me: It's non-content instead of content, broad scale instead of narrow, stored instead of real-time, provider disclosure instead of government tapping, and domestic accounts instead of intercepting traffic with at least one party overseas."

Also on the right, Captain's Quarters ultimately supports the program but also thinks his brethren ought to be more skeptical: "With the US still in danger of terrorist attack and with the rational possibility of sleeper cells hiding in our communities, the use of this tool makes sense and provides security for a reasonable loss of privacy. ...However, that does not make the collection of this data completely benign under any circumstances. This kind of data could be used for purposes other than finding terrorists. For instance, it could be used against whistleblowers to discover their contacts. It could get deployed against opposition parties to determine their scope and the location and number of their supporters. People could get blackmailed for their phone calls in ways that have nothing to do with national security. If the CIA or State Department (which has its own intelligence service) had this program rather than the NSA, many on the Right would feel much less sanguine about its implications."

Judging from blogosphere reaction, all sides agree that Sen. Harry Reid (D-NV) won the latest battle in over immigration in the Senate. The Political Animal gives some history: "When we last heard from the Senate, Harry Reid had scuppered a compromise deal on immigration because Bill Frist had refused to provide assurances that he'd back the compromise by (a) limiting the number of amendments offered on the floor and (b) appointing serious supporters of the bill to the conference committee that will hash out a final markup with the House. Reid had the balls to kill the deal when it became clear the fix was in, and it looks like this has paid off. ...This isn't perfect, and things might eventually blow up in conference anyway. But it's better than what we had before."

Many righty bloggers smelled defeat for their pro-enforcement position. Blue Crab Boulevard: "I am still not going to be happy with a program that effectively rewards people who came here illegally with a preferred status. In other words, they should not have a better place in the queue to citizenship than those who have done it the right way. I'd also expect a massive, real crackdown on people who hire illegals or we will just be in for more." Parapundit: "The traitors are at it again. ...The US Senate seems deaf to the rising popular anger on immigration."

Righty Captain's Quarters thought the bill could still be salvaged if the right Sens. are appointed to the conference committee: "Key to the final version will be the members from both houses to the conference committee, and at least one opponent of amnesty from the Senate will be included. ...Cornyn has stood tall against the Democrats and the White House in opposing the Senate's focus on normalization while mostly ignoring border security. He will be one voice among dozens, but his inclusion does show that the Senate leadership of both parties recognize the strong push for border security. ... It also acknowledges that no conference bill will get any kind of credibility without the imprimatur of Cornyn and others of his perspective."

The Moderate Voice thinks the Dems are better off with no bill at all: "The Democrats as a party yearn for on a national scale what happened to California's then-Governor Pete Wilson who alienated Hispanic voters from the California Republican after backing a hard-line measure (that was later checkmated in court anyway). The California GOP has never recovered. And the Democrats had hoped to be able to use the overreaching of one segment of the GOP on this issue as a way to solidify their support among the important Hispanic voting bloc. ...Most likely outcome: a Senate bill but perhaps compromise with the House is impossible. But a compromise Senate bill will make it harder for Democrats to press the case that all Republicans want to make illegal immigrants felons and go after anyone who helps them."

Lefty bloggers are cooing over a new Sen. John Kerry (D-MA) profile in The Nation. Taylor Marsh: "You knew this was coming. I've been waiting for it for weeks. A new article in The Nation entitled, THE NEW JOHN KERRY. Berman gets it right: "Call it the Al Gore Effect."

The Democratic Daily is happy to see Kerry focussing on Iraq: "On the heals of yet another great speech today from John Kerry about "dissent" and "patriotism," Ari Berman writes in today's The Nation about "The New Kerry." Berman notes that during his speech at Faneuil Hall last month, "on the thirty-fifth anniversary of his stirring testimony before Congress as a representative of Vietnam Veterans Against the War, Kerry was invoking a theme downplayed throughout his 2004 campaign and confronting the issue that bedeviled his candidacy: the war in Iraq." While Democrats.com is happy to see Kerry bashing Pres. Bush: "Ari Berman has written an excellent piece for The Nation called 'The New Kerry,' in which he explores changes that have taken place in the Massachusetts Senator since the 2004 presidential campaign. It's a great read focusing on a crisper, more-forceful Kerry, who appears to be through giving the Bush administration a free pass on anything."

Kerry also reached out to the blogosphere 5/11 with a post at DailyKos: "But something far more fundamental is out of whack in Washington. Every day we learn something new about this Administration's attitude - and too many people greet each story with a yawn as we learn that President Bush has announced he can disobey more than 750 laws enacted on his watch. Since when do we accept that any President has the power to set aside statutes passed by Congress when it conflicts with his interpretation of the Constitution? ...I know one thing...we can't defeat the Bush Cheney Doctrine if we're not crystal clear that it's wrong and we will not tolerate it any longer."

Kerry's post netted 742 comments by deadline and an extremely unscientific reading of them shows reaction was mixed. Bush basing always goes over well at DailyKos but many posters thought Kerry's newest efforts were too little too late. A typical Kerry dissenter:

"Senator Kerry, I voted for you in 2004 and was very disappointed when you did not win. It was your fault though; you tried to be all things to all people. You tried to straddle the fence, you were too easy on Bush, and you came across as "republican lite". By not taking a firm stance against the war, you failed to give people much of a choice. In your diary yesterday you posed an interesting question to the Kos community. When is enough really enough? Interesting question Senator - when is too late really too late? Most of us here have been screaming from the rafters for over 5 years that ENOUGH is ENOUGH! But who was listening? Until the polls began to swing our way, we were shouting in the wilderness. Now of course, the timid "leaders" of the Democratic Party want to talk smack about being fed up with Bush. Pardon me if I don't want to hear it."

Sociology professor Kieran Healy, writing at Crooked Timber, is no fan of the NSA's phone record program. But she can sympathize: "Scientists and spies are not so different. The intelligence community's drive to find the truth, to uncover the real structure of things, is similar to what motivates natural or social scientists. For that reason, I can easily understand why the people at the NSA would have been drawn to build a database like the one they have assembled. The little megalomaniac that lives inside any data-collecting scientist ("More detail! More variables! More coverage!") thrills at the thought of what you could do with a database like that. Think of the possibilities! ...To be blunt, scientists are happy to do just about anything in the pursuit of better knowledge, unless there are rules that say otherwise. The same is true of the government, and the people it employs to spy on our behalf. They only want to find things out, too. But just as in science, that's not the only value that matters."

LEST WE FORGET: Snakeback Mountain

Those of you in the right age bracket certainly remember the cartoon He-Man and can now watch the old episodes in their entirety on DVD. Sam Anderson at Slate warns that they may look a little different now: "The best part about rewatching He-Man, after the initial nostalgia-burst, was tracking the show's hilarious accidental homo-eroticism-an aspect I missed completely as a first-grader. ...It's almost too easy: Prince Adam, He-Man's alter ego, is a ripped Nordic pageboy with blinding teeth and sharply waxed eyebrows who spends lazy afternoons pampering his timid pet cat; he wears lavender stretch pants, furry purple Ugg boots, and a sleeveless pink blouse that clings like saran wrap to his pecs. To become He-Man, Adam harnesses what he calls "fabulous secret powers": His clothes fall off, his voice drops a full octave, his skin turns from vanilla to nut brown, his giant sword starts gushing energy, and he adopts a name so absurdly masculine it's redundant. Next, he typically runs around seizing space-wands with glowing knobs and fabulously straddling giant rockets. He hangs out with people called Fisto and Ram Man, and they all exchange wink-wink nudge-nudge dialogue: "I'd like to hear more about this hooded seed-man of yours!" "I feel the bony finger of Skeletor!" "Your assistance is required on Snake Mountain!" Once you start thinking along these lines, it's impossible to stop."

Posted by Conn Carroll at May 12, 2006 12:03 PM