Issue in Brief

What's up.

In December 2005, the New York Times reported the National Security Agency (NSA) was tapping into international calls to the US without any warrants. It didn't take long for the battalions of civil libertarians and security hawks to get in formation and accuse each other of "illegal power grabs," "forgetting the lessons of 9/11," etc. etc.

The dust soon settled, but not for long - a May 2006 report in USA Today, claiming the NSA had data-mined phone records of 200 million Americans, put the political spotlight back on the NSA secret programs and renewed calls from some lawmakers for more hearings and/or bills to bring the NSA programs under the oversight of the courts.

A US District Court decision soon followed calling the wiretap program unconstitutional (the opinion is thought to be far from legal genius). While that decision was reversed in July '07 (on a technicality), other - potentially more successful lawsuits - are lining up (WP).

In January 2007, Bush took Congress by surprise by placing the wiretap
program under the eye of the courts - and then giving 30+ lawmakers
access to recent wiretap subpoenas (WP). The Director of National Intelligence says warrantless taps haven't been used since (NYT).

While the new Democratic Congress talked about reining in the wiretap program, it surprised itself (yes, that's what we meant) in early August '07 by voting to let our spooks tap into calls between Americans and foreigners thought to be terrorists, as long as the American wasn't the target - again, without a warrant. The law only has a six month shelf life, so Congress has already started debating how they'll renew early next year.

What's doing in Congress

In 2006, senators were working on a bill hatched as a compromise with the administration - that would put the wiretap program under the eye of the courts, kind of. According to the Washington Post, the courts would be able to approve the program as a whole but wouldn't have the power to okay individual warrants. That bill never ended up being voted on (WP). The House did pass its own, stricter, version, which would give the president a 90 day free wiretap pass before seeking a warrant when the president thinks there's an "imminent threat" related to terrorism. (NYT)

As for the shotgun bill passed in early August, it lets the NSA tap calls where at least one end of the call is "reasonably" believed to be outside the US. Even though the bill is public (S 1927) and not too long, people disagree on how far the bill goes: the dailies report that it goes further than the original NSA program, for example, allowing the feds to tap anyone outside the US, not just suspected terrorists, but details are shaky - WP, WP, LAT, WP, NYT.

The August bill is only good for six months, giving Democrats - who think they may have oopsied - a second chance to get NSA legislation right. The dailies are reporting, though, that a new bill may look pretty similar. The only difference is that the courts every once in a while would get to check up on the program to make sure that it wasn't being abused. (NYT, AP, WP)

The usual caveats: As always, this Issue in Brief won't try to figure out who's right and wrong. And because we're not legal scholars and we don't have secret sources at the Pentagon, it also doesn't offer any new insights. What we do offer is a round up of what's been reported about the NSA program and the landscape of what the critics and supporters of the program are saying - for readers who want to get a handle on the debate for themselves.

What exactly is the NSA secret program?

That's not entirely clear, because, yes, it's a "secret" program. What the administration has said publicly is that the NSA program taps calls between folks in and outside the US when there was "probable cause" or a "reasonable basis" to believe that one of the talkers was tied to al Qaeda. (WP , WP). Although the administration has defended the program and has given Congress' intelligence committees more details, there's not much else on public record.

The Washington Post, however, put together a bigger picture of the program through conversations with ex-spies and other secret government sources (which jive with NYT reports - and also corresponds with the May USA today scoop.) According to the Post, the NSA, which is one of the Department of Defense intelligence agencies that normally tracks foreign spies, has been crunching a lot of "meta-data" - phone usage, emailing, etc. - to find folks that fit the pattern of someone connected to terrorists. People who fit the mold first may have a machine listen in on their conversations to see if they hear any terrorist talk tip-offs. If so, they may get a wiretap that an FBI agent can then listen in on. The Post says that while up to 5,000 people may have been tapped under the program, only about ten taps a year become real leads. (WP)

Note: There was a brief flap over whether the NSA wiretap program was the only secret program the NSA had going on. Comments made by the Attorney General suggested that there could have been other NSA secret programs that hadn't yet come out of the closet, but the AG assured Congress there's no other way Americans are being secretly surveilled. (WP & WP)

So what's all the fuss?

Critics of the NSA program say that the warrantless wiretaps are both illegal - on a number of levels - and that they unnecessarily step on the toes of our civil liberties. Supporters say the president kept within his legal authority in okaying the program; more importantly, they argue, the program is critical to our national security needs.

The legal disagreement.

Critics argue the NSA's wiretap program is illegal for two reasons. First, they point out the laws that govern spying on terrorists - FISA and PATRIOT - require that the administration get permission from secret FISA courts before they tap a phone at home (they can also go to court within three days after doing a tap if they were in a rush). Second, they say the president violated the National Security Act by not informing all members of Congress' intelligence committees about the program; instead, the administration only told what's known as the "gang of eight," the leaders of those committees, about the program. Supporters of the NSA wiretap program say that Congress in effect okayed the NSA program when it voted after 9/11 to give the president power to "use all necessary and appropriate force against those... organizations or persons" who committed the terrorist acts on 9/11 "in order to prevent any future acts of international terrorism against the United States." That authority is backed up by the Constitution and the president's power as Commander in Chief.

Caveat repeat: we're not legal experts. With that said, there are a bunch of legal nuances we think worth looking at anyway, a few which Adam Liptak discusses in this NYTimes article. A lot of the lega debate depends on how much Congress' authorization to use force against al Qaeda legally trumps FISA rules. Congress members who voted for the authorization - and some who wrote it - say they never imagined they were voting to give the president the power to go around FISA to place wiretaps on Americans. (WP and WP) At the same time, the Supreme Court has said - in a case about enemy combatants - that Congress' authorization to use force did give the president other powers which may not have been listed explicitly. The law is also less than crystal clear on whether spying is an automatic power the president gets when the country is at war. For that matter, CJ doesn't know whether the Congress' authorization to use force means we're technically "at war" with al Qaeda or not. Looming in the background is an even larger debate about how much power the Constitution inherently gives the president to protect us. But our un-lawyered minds stretch too far...

The civil liberties vs. national security argument.

On the wiretaps: Regardless of whether the NSA program is legal or not, national security hawks say the president sometimes needs the power to okay taps without going through FISA courts because getting a FISA warrant not only can slow down a terrorist investigation, but could also keep law enforcers from eavesdropping on conversations where common sense says they should, even though the law says they shouldn't. The idea here is that FISA was written in a pre-terrorist era and is too clunky for the fast pace of tracking terrorists in a post 9/11 world. In general, the argument goes that the more Congress and the courts get involved in the process of fighting terrorists the more the administration gets tied down and the higher goes our risk of getting hit again. Civil libertarians think the NSA program is both unnecessary and bad. First, they argue that an essential part to protecting civil liberties is giving the courts oversight over who gets searched; the NSA program leaves the courts out of the loop. They also say the FISA courts aren't clunky as all that; even if they were, they give the administration a three day grace period to start a tap and ask for permission later. Plus, if the administration thought FISA rules were outdated it should have asked Congress to change the law. Finally, if the Washington Post's take is correct (the administration hasn't said it is), the NSA isn't using the warrantless wiretaps for the kind of emergency scenarios that their supporters suggest.

On the data-mining: Supporters (WSJ, Brookings, WS) say that the data-mining program is even less of a civil libertarian scare than wiretaps because the NSA is only trawling anonymous records and that presumably (but, again, no one knows) the feds are getting warrants when they do zero in on a caller that could be a terrorist threat. The program is also common sense, they say: if you can connect the dots of who terrorists are talking to, you're likely to find more terrorists (not far off from the way Friendster works). Opponents say the anonymity factor is skin deep - it wouldn't take much work to uncover the true identity of an anonymous phone user if someone in the government felt like it. They also argue that the data mining system doesn't work very well; it can easily ensnare innocents (do you know, after all, who all your friends are calling?) and that after all the record trawling the NSA has done since 2001, it's only managed to produce 10 leads that merit a real wiretap warrant (according to the Washington Post). (As for the legality of the data-mining, again, both sides have their own understanding of the law; see these two Washington Post articles.)

Where we got all of the above from - and some other readings

• The Washington Post pieces together some of how the program works.

• The New York Time explains some of the legal nuances of the debate.

• The attorney general states the case for why the program is legal and necessary. WSJ

• The Congressional Research Service, Congress' nonpartisan research wing, says the NSA program has some legal problems, in two reports (pdf). The FISA judges also have expressed concerns with the legality of the program. NYT and WP

• Wall Street Journal op-ed argues the NSA program is legal and necessary. A second Journal op-ed gives scenarios where you might think a tap was a good idea for security, but where the law wouldn't allow one.

• The NYT makes no bones on where it stands on the issue. ouch

• Debra Burlingame argues that the NSA program was necessary in view of slow FISA courts.

• David Ignatius of the Washington Post is one of the rare voices urging bi-partisan cooperation to bring the wiretap program under the umbrella of Congress and the courts.

• A WSJ op-ed makes the point that the NSA had to be secret to be effective.

• U.S. Department of Justice White Paper on NSA Legal Authorities.

• Letter to Congress on NSA Spying from 14 constitutional law scholars and former government officials

• Foreign Intelligence Surveillance Act of 1978 (FISA)

• A NY Times article on some of the technology NSA, law enforcement and private companies use to mine telephone and internet data. Cool and scary.

• Editorialists in the Wall Street Journal, from Brookings and Manhattan Institute argue that data mining makes sense. David Ignatius of the Washington Post also explains why it may make sense, although it's likely illegal.

• The Chicago Tribune gives the best argument for why we should be nervous about data mining.

More secrets - and secret cameras

The New York Times unveiled another round of hush-hush surveillance actions in January, 2007. This time, the paper revealed that the CIA and Pentagon were using "National Security Authorization" (NSA) letters to get a hold of suspect's banking records. NSA letters are meant to be used by the FBI, which keeps an eye on domestic crimes, not by the CIA and Pentagon. Although the CIA and Pentagon NSA letters are "noncompulsory," banks usually comply; the Pentagon has issued thousands of them since 2001 while the CIA has only issued a small handful, according to the Times. (NYT)

The FBI is also getting its share of flack on NSA letters - with reports in early 2007 showing that the agency may be been a little sloppy (or acting illegally - depending on your view) in following proper NSA procedures. (LAT & WP & WP)

Just when you thought it was safe to stay home: Surveillance on US soil may also go high-resolution, with intelligence turning over use of its "spy-satellite imagery" for domestic uses - although, according to Homelad Security - via CongressDaily - the spy satellites have been used for domestic viewing for years. Nonetheless, civil libertarians are not happy - and some in Congress may try to stop the move. (WP & NYT)

Updated October 6, 2007

Did we miss something, let some slant slip in, lose a link - or do you just have something to say? Drop a line below! In the spirit of open dialogue, cJ asks you keep it civil, keep it real and keep it focused on the message, not the messenger. See our policy page for more on what that all means.