The PBS Newshour has a piece which clearly demonstrates the uninformed ignorance of some notable politicians.
SEN. PATRICK LEAHY: Only through the press, we begin to learn the truth. The secret collection of phone call records tens of millions of Americans. Now, are you telling me that tens of millions of Americans are involved with al-Qaida? If that's the case, we've really failed in any kind of a war on terror.
SEN. ARLEN SPECTER, R-Pa., Judiciary Committee Chairman: We're going to call on those telephone companies to provide information to try to figure out exactly what is going on.
One has to ask, did either of the above two excuses for individuals concerned with national security consult with any of their colleagues on the Intelligence Committee? Obviously they haven't. Perhaps they would have been told they shouldn't even be discussing the matter as it is classified. It's unclear if either of the two even have the proper clearance since they aren't on the Intelligence Committee themselves.
SEN. KIT BOND, R-Mo.: Yes. I'm a member of the subcommittee of the Intelligence Committee that's been thoroughly briefed on this program and other programs.
And the first point I would make is every time we have a leak of classified information like this, it makes us significantly less safe. Regrettably, since December, when word started coming out about the president's program, and terrorists have learned about what is going on, and it makes us less safe. The more we talk about it, the less safe we are.
And then there is this abject stupidity:
SEN. DIANNE FEINSTEIN, D-Calif.: I happen to believe we're on our way to a major constitutional confrontation on Fourth Amendment guarantees of unreasonable search and seizure. And I think this is also going to be present a growing impediment to the confirmation of General Hayden, and I think that is very regretted.
Were Feinstein truly qualified for a seat in the US Senate, one would think she'd take time to read the newspaper stories and perhaps even consult even a half-wit Constituional lawyer before tossing out such a ridiculous claim.
The fact is the Supreme Court ruled in 1979 that telephone callers have no expectation of privacy as regards their telephone numbers, or over what telephone numbers they call.
A government official, while not confirming the existence of the NSA program, pointed to a 1979 Supreme Court case, Smith v. Maryland. The official said justices ruled that the acquisition of basic phone records — calling numbers, called numbers and duration of calls — is not a "search" under the Fourth Amendment and that individuals do not have a reasonable expectation of privacy in such call record data.
But Kate Martin, director of the Center for National Security Studies, said after that case Congress required courts to approve the use of electronic devices that capture basic information about calls in real time, or to get a court order or a subpoena for phone records stored by phone companies.
That above is not entirely clear. Kate Martin continues her argument here.
Could the FBI simply have obtained the same information using a National Security Letter (NSL) administrative subpoena and then shared the information with the NSA?
The short answer is no.
Some have suggested that the administration could have obtained the same information through the FBI. But this misunderstands the respective roles of the agencies and the limits on FBI and NSA activity.
She goes on to refer to, but not link 18 USC 2709. In pertinent parts:
(a) Duty to Provide.— A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required Certification.— The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—
(d) Dissemination by Bureau.— The Federal Bureau of Investigation may disseminate information and records obtained under this section only as provided in guidelines approved by the Attorney General for foreign intelligence collection and foreign counterintelligence investigations conducted by the Federal Bureau of Investigation, and, with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.
(e) Requirement That Certain Congressional Bodies Be Informed.— On a semiannual basis the Director of the Federal Bureau of Investigation shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate, and the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate, concerning all requests made under subsection (b) of this section.
Obviously, lawyers will weigh in. However, Miller's assertion above that the FBI providing data to the NSA "misunderstands the respective roles of the agencies and the limits on FBI and NSA activity" does not appear to apply. As in bold two paragraphs up, there appears to be only one restriction on the sharing of data between the FBI and another agency:
with respect to dissemination to an agency of the United States, only if such information is clearly relevant to the authorized responsibilities of such agency.
As the NSA's responsibilities include combating terrorism, assuming the AG deemed this program relevant to that task, I can't see any restriction to support Miller's position. While she is welcome to her presumption that the NSA shouldn't have it, it certainly isn't clearly addressed in this particular law.
The ultimate point is that this is a classified program and if some members of Congress wanted additional information, the media is not the appropriate forum for them to obtain it.
Comments