Under fire for data dig

Bush insists there's no invasion of privacy as another report surfaces of government secretly collecting phone call records without subpoena

BY TOM BRUNE | Newsday Washington Bureau

May 12, 2006

WASHINGTON - Members of Congress demanded answers from the Bush administration yesterday about a report of a second secret warrantless surveillance program, this one involving government data mining of phone company records of tens of millions of Americans' domestic calls in a hunt for terrorists.

The report about the data mining, in USA Today, created an uproar in Congress, where charges of illegality and calls for greater oversight led President George W. Bush to make an unusual unscheduled appearance to insist U.S. terrorist surveillance efforts are within the law and protect privacy.

"We're not mining or trolling through the personal lives of millions of innocent Americans," Bush said in the two-minute TV appearance. "Our efforts are focused on links to al-Qaida and their known affiliates."

Bush did not confirm or deny that the program exists. Don Weber, spokesman for the secretive National Security Agency, which the report said operates the program, said, "It would be irresponsible to comment on actual or alleged operational issues."

USA Today said that after 9/11 the NSA began secretly collecting phone call records - which include phone numbers, connections and call times and no other identifiable customer data - from AT&T, Verizon and BellSouth without a court order or subpoena. Denver-based Qwest refused to cooperate, concerned about legal issues.

The NSA used the regularly updated data to build a massive database - without listening to any conversations - to data mine, or analyze the data for patterns that might suggest terrorist activities, the newspaper said, citing anonymous sources with knowledge of the program.

The report touched off a heated debate over the program's legality and its implications for privacy and civil liberties.

Phone-number databases and data mining contain technology that might not be covered in existing law, say some attorneys, and telephone numbers by themselves are not considered confidential.

One former Justice Department attorney in the Bush administration said the program as described might not be barred by any law.

Two Supreme Court cases, one on tracing telephone connections and the other on bank records, suggest it would not violate the Fourth Amendment, the lawyer said. If the NSA is not collecting the data in real time, but in records afterward, it may not need a court order or subpoena.

However, James Dempsey of the nonprofit Center for Democracy and Technology said several laws appear to apply to the described program.

Real-time collection of data would require the NSA to get a warrant either from a criminal court or from the special court created by the Foreign Surveillance Intelligence Act, he said.

And if the NSA is collecting historical records, the telecommunications companies face the Electronic Communications Privacy Act and another law that prohibits sharing information without a subpoena or court order, he said.

Civil liberties groups, including the ACLU and the Center for National Security Studies, say the phone companies may have left themselves open to shareholder and customer lawsuits charging violation of confidentiality. The companies declined to talk about the programs but said they complied with the law.

Sen. John Cornyn (R-Texas) said the president might be operating under his constitutional authority as a commander in chief in a time of war, which would trump other laws, a claim he made for the other NSA surveillance program.

Democrats expressed outrage and frustration. They suggested that they will seek answers at next week's confirmation hearing for CIA director nominee Gen. Michael Hayden, who headed the NSA when the surveillance programs began.

"Are you telling me that tens of millions of Americans are involved with al-Qaida?" said Sen. Patrick Leahy (D-Vt.).

It wasn't just Democrats who voiced frustration. Sen. Arlen Specter (R-Pa.), Judiciary Committee chairman, said he would ask the phone companies to appear for a hearing and would subpoena them if necessary.

But most Republicans defended the administration.

The report in yesterday's USA Today came six months after The New York Times reported the NSA is intercepting and reading U.S. calls and e-mails to and from other countries if one end involves a suspected al-Qaida member or affiliate. The Bush administration has acknowledged and defended that program.

Trouble at hush-hush agency

The National Security Agency - so secretive that its acronym is said to stand for "No Such Agency" - is the government's largest intelligence unit. It collects and analyzes foreign communications and tries to protect U.S. government communications against foreign spies. Its global surveillance network monitors radio stations, e-mail, telephone calls and other forms of communication. The agency is involved in breaking and developing codes, and as such is said to be the largest U.S. employer of mathematicians.

The agency has its problems:

It was found at the end of last year to be eavesdropping without federal court authorization on conversations between people in the United States and overseas who are suspected of being related to al-Qaida.

A $300-million computer program that is supposed to track new NSA projects has so many problems the agency wants to discard it.

It can review only a tiny fraction of the communications it intercepts, congressional experts say.