I'm back!

Actually, I've been busy for the last several months trying to make the transition from government lawyer to trial lawyer. I've felt the need to avoid a couple of subjects because it gets hard sometimes writing about issus where you have to separate what you can and can't talk about. Finally, its no secret that the tone and tenor of civil discourse on the internet is abyssmal. I do enough verbal sparing at my day job and found it difficult to keep it up here.

That being said, today's US Today has the intel community scandal-du-jour. A hearing for a Bush appointee coming up? Time to unilaterally declassify intel programs (and pick up our Pulitzer at the door)! Here's the highlights:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T;, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

more . . .

The government is collecting "external" data on domestic phone calls but is not intercepting "internals," a term for the actual content of the communication, according to a U.S. intelligence official familiar with the program. This kind of data collection from phone companies is not uncommon; it's been done before, though never on this large a scale, the official said. The data are used for "social network analysis," the official said, meaning to study how terrorist networks contact each other and how they are tied together.

My Comments:

As the USA Today article states, the data being handed over to the NSA is "external" information; that is, the two numbers involved in a phone call and the date/time of the phone call. They do not turn over the actual content of what was said over the phone (because the phone companies don't record phone conversations). Best analogy is the difference between the information on the outside of an envelope and the actual letter inside. There is a heightened protection for the content of a letter/phone conversation under the 4th Amendment (a constitutional provision) and collection is governed under Title III (criminal cases) or FISA (intelligence cases) (both statutes).

Pre-Patriot Act, there was a disconnect between Title III and FISA. If I were investigating phone calls made by members of the Mafia or the drug dealer in your hometown and wanted to collect the "externals" for their phone calls, there were no significant constitutional prohibitions or protections for the that information. The 4th amendment protected only the content. However, FISA granted protection to both the externals and the internals, or at least was interpreted to do so. Patriot Act, along with a review of the interpretation of FISA by competent, non-partisan government lawyers (many of whom I know personally and can vouch for their lack of fascist intent) led to the conclusion that there is a reduced level of protection for externals and that they should be treated just as criminal case externals ought to be treated.

Unlike criminal cases, however, the power of intelligence collection and database systems and the policies of their organizations allows for an extra level of oversight that compensates for the fact that unlike criminal cases that go to trial, there usually isn't a judicial review of government activity in intelligence cases). The scenario works like this: The external data of every phone call sits in a database somewhere. By itself, the data is useless due to the sheer amount. Because its nothing more than a bucket of bits and bytes, it hasn't been "collected" yet, and therefore, subject to rules on collection of US Person information. The data isn't relevant until someone sits at a computer terminal and queries the database: "tell me the phone activity of phone number X." This will reveal a lot of information, but again, mostly meaningless, unless number X has some prior relevance before you sat down at the computer terminal. Relevance would mean that the number came from a cell phone captured on a battlefield in Afghanistan, or its the number of an Islamic Radical in New Jersey who's suspected of providing logistical support to various terrorist networks.

Ahh, the moonbats and tin-foil hats ask, how do we know they're not putting Cindy Sheehan's number through the database? The answer is, who knows? However, several facts would lead a reasonable person to conclude the answer to be "ain't happening."

First, NSA, while large, at some point has limited resources. Basic laws of bureaucracy dictate that NSA will only apply enough resources that will allow them to meet their basic mission - catching terrorists and agents of foreign powers.

Second, at all levels of intelligence collection, from the terminal operator in the bowels of Fort Meade, to DOD (NSA's boss), to Congress, there are layers of individuals (intelligence oversight officials) who's only purpose is to find a reason why the operator's query of the database violates some or another policy. It's how these people justify their existence. They are separate from the normal chain of command and have all sorts of authority to shut down operations if rights and policies are being violated. No one loses sleep over running a phone number located in a foreign country, but I've also seen people lose their careers for running their girlfriend's cell phone number through the system. I've gotten calls from high level government attorneys asking me what the hell I'm doing running a US phone number through the system, and having them calm down after justifying the search by showing a link between the number and international terrorist activities.

Third, what civil servant making $80-100K per year would flush their career down the toilet over Cindy Sheehan, or any other "administration enemy"? Intel folks sacrificing their CIA careers over "speaking truth to power" is one thing, but checking external phone call data for a political purpose is suicide at the worker level, the NSA management level, and the White House level. Bush may be stupid, but he's not Nixonian. Further, NSA has paid dearly (or, rather, they take seriously the fact that US taxpayers have paid dearly) for its programs and systems, uses them sparingly and guards them jealously. Why do something to rankle Congress and have them shut off funding not only for this program, but others like it. The NSA legal and oversight system is primarily designed to protect rights and keep Congress happy.

The majority of comments I've seen elsewhere in the blogosphere tell me that some people need to get the knots out of their knickers because they know not of what they speak and are making mere assumptions which belie their prejudices. Competent intel professionals and attorneys who've worked their whole lives in this arena, are attempting to apply the myriad laws and policies to quickly emerging technologies and assymetrical threats. What they're trying to do is meet a difficult mission: find out where those who mean us harm are, what they are thinking, and whether they will strike again. If the program is wrong, there's a process already existing to investigate and determine its propriety. Otherwise, there's nothing to suggest the level of breathlessness and hyperventilation over this issue.