Outside the Spectrum

  So the debate begins about the legality of this latest NSA spying scandal, with debate seeming to focus on the limitations of laws regarding pen registers. Conservatives like Michelle Malkin and bloggers Confederate Yankee and “Captain” Ed erroneously quote pen register statute like drunken lawyers asserting, unequivocally, that this latest program is surely legal.

   The law, of course, states that pen registers, or records of calls made, can be used by the FBI…if they have a court order. Patriot Act amendments to FISA require a court order, not a warrant. The government must prove that the phone records are pertinent to an investigation.

   The Bush administration is asserting that the phone records of every single person in the country is pertinent to its investigation of terrorism, a stunningly broad interpretation of the statutes. Hello, Big Brother.

   The legality of having the NSA do this work is also questionable, as the NSA specifically doesn’t have the authority to investigate or prosecute terrorists or their friends or fundraisers in the domestic United States: that’s the job of the FBI. The NSA’s purview is foreign intelligence gathering.

   I think I know why the president used the NSA: they are the only agency in the country with the kind of massive supercomputers necessary to comb through the phone records of the entire nation. Despite knowing this, I question why, if the president was so concerned about the domestic investigation of terrorism links, he didn’t appropriate funds for the FBI so they could enact this program.

   I obviously don’t trust the Bush administration, and I suspect the reason they just let the NSA do this is twofold: first, the president, in appropriating funds, would have had to involve congress. We all know this president has no desire for congressional input or oversight in anything he does. Secondly, having the FBI run this program would probably have meant convincing FBI administrators that this program was legal. The FBI has a long history of investigating Americans and is well aware of the limitations of doing so. I suspect they would not have been thrilled with the legal implications of this program. The NSA, on the other hand, was run by a four star general who simply didn’t know or remember the words of the fourth amendment.

   Despite her legal “expertise,” Attention Deficit has no problem advocating this program as legal and necessary. Congress is not so sure. Arlen Specter, the republican chairman of the Judiciary Committee, said he would investigate by subpoenaing telephone company executives and others, saying that a lot of investigation would be necessary to determine if warrants were needed for this program, thus questioning its legality. Boehner, the republican majority leader in the House, argued that he wasn’t sure this program was necessary.

   So even republican leaders questioned both the legality and necessity of the program. Democratic leaders did more than “question.” Leahy was apoplectic, as I described yesterday. Most in congress didn’t have statements for the press regarding this incident. Their mood seemed…uneasy.

   The majority of Americans seems to be okay with the NSA’s domestic program, however, they might change their opinion if they knew it was against the law.

   There is more discussion about the laws the NSA apparently violated in its domestic program. Greenwald also has a cogent discussion of the legal uses of a pen register. It’s his May 11th post. Summary: pen registers require court orders, Bush cultists. The NSA, reportedly, never went to the FISA Court. It certainly didn’t go to 10,000 district courts to get orders, either. The language also stresses that the register must gather information specifically pertinent to an ongoing investigation. Taking the phone records of virtually every American in the country is a laughably broad reading of this law, and is apparently the reason why the NSA reportedly didn’t go to FISA: they told the person interviewed by USA Today that they didn’t think FISA would OK their program. Kerr also discusses the various statutes that may apply. He concludes that it’s likely, or a least very possible, that the NSA’s program violates the Stored Communications Act and the Pen Register statute. He concludes that there are a number of “statutory problems” with the NSA program.

   There is actually a lot of news in the blogosphere today. The Bush administration has again denied the International Red Cross access to prisoners.  

   In another age, like 1993, the fact that federal authorities were investigating the chairman of the House Ways and Means Committee alone would prompt an uproar. Nowadays that story is buried by the avalanche of stories regarding NSA wiretapping, Rove’s possible indictment, the FBI raiding the home of Foggo (the executive director of the CIA), even the story of the deceptions of the HUD Secretary Jackson.

   Jesus Christ, the entire Executive Branch is collapsing at the same time! Run! Run for your lives!