Tuesday, May 16, 2006

NSA roundup

Two things of note today with the NSA phone database story, and a development in the NSA's warrantless wiretap story.

First, the New York Times has a thoughtful essay by Jonathan David Farley of the Center for International Secuirty and Cooperation, who sheds more light on the question: does copying everyone's phone records help us find terrorists? His answer: no, for several reasons, among them one I mentioned a few days ago: the Kevin Bacon problem.

It's a thought-provoking explanation of how network analysis works, and the problems posed by the NSA's version. His conclusion: the NSA effort would not actually be effective, and for that reason alone it is not worth the civil liberties damage.

Meanwhile, two of the phone companies mentioned in the USA Today story that set off this brouhaha have denied that they were ever approached by the NSA:

Verizon Communications Inc. denied Tuesday that it had received a request for customer phone records from the National Security Agency, bringing into question key points of a USA Today story. ... The statement came a day after BellSouth Corp. also said the NSA had never requested customer call data, nor had the company provided any.

Denials aren't proof of anything, of course. But then, neither are anonymously sourced stories. Their denials leave AT&T as the only company to not deny the charge, and Qwest has already said it was approached but turned the government down.

Finally, Arlen Specter has struck a deal with other GOP members of the Senate Judiciary Committee, laying the ground rules for determining the legality of the NSA spy programs.

It's basically a surrender:

Specter has mollified conservative opposition to his bill by agreeing to drop the requirement that the Bush administration seek a legal judgment on the program from a special court set up by the Foreign Intelligence Surveillance Act (FISA) of 1978.

Instead, Specter agreed to allow the administration to retain an important legal defense by allowing the court, which holds its hearings in secret, to review the program only by hearing a challenge from a plaintiff with legal standing, said a person familiar with the text of language agreed to by Specter and committee conservatives.

Conservative Republicans who pushed for the change say that it will help quell concerns about the measure’s constitutionality and allow the White House to retain a basic legal defense.

An expert in constitutional law and national security, however, said that the change would allow the administration to throw up huge obstacles to anyone seeking to challenge the program’s legality.

Exactly. The only people with legal standing would be someone who could show they were affected by the program. But with the surveillance targets being kept secret, no one will know if they were a target, and certainly couldn't prove it. So showing standing will be a nigh-impossible task.

All of this is simply to clear the way for legislation that would declare the surveillance program legal. The only bone thrown to opponents is a clause giving the FISA court jurisdiction over challenges to the program. But FISA already had such jurisdiction over intelligence matters, and the administration didn't care, instead asserting non-FISA authority for the program. Bush will continue to assert "inherent" constitutional authority for the program and thus continue to ignore FISA. And thanks to Specter's surrender, FISA can't do anything about it until someone with standing challenges the program.

The story does note that some cases are already in the pipeline:

But a GOP aide familiar with the compromise said more than 20 cases are “in the pipeline” in which plaintiffs have challenged the surveillance program. It was very likely that the court would rule on one of the cases if Specter’s bill passed, the aide added.

Maybe. We'll see how many of those cases survive the "standing" hurdle.

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Anonymous maxtrue said...

Hi Sean'
I thought you might find this link to Centerfield interesting NSA I love Luzer's remark.

5/17/2006 11:15 PM  
Blogger Sean Aqui said...

Thanks, Max. I'm a bit swamped (which is why I haven't posted a lot in the last couple of days) but I'll take a look when I get a chance.


5/18/2006 2:39 PM  

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