Denying Reality in the NSA Controversy
An Associated Press story this morning discussed various strands of the controversy surrounding the alleged National Security Agency program to collect and analyze domestic telephone records, which was first revealed last week by USA Today. The resulting confusion and speculation suggest that the government’s policy of official obliqueness is doing more harm than good.
The Administration, from the President on down, has steadfastly refused to confirm or deny even the existence of the program, never mind anything about its scope, purpose, or methods, or the procedures for oversight of the program, notification of Congress, or seeking warrants. The Washington Post had a good report yesterday on the Administration’s ability to deliver studiously precise but evasive answers, noting that “administration officials have been punctilious in discussing the NSA program over the past five months, parsing their words with care and limiting comments to the portion of the program that had been confirmed by the president in December.”
The AP story noted three separate perplexing and contradictory developments from yesterday:
1. President Bush, answering questions at a White House photo op, seemingly confirmed the existence of the domestic phone-records program. Later in the day, however, brand-new White House spokesman Tony Snow spun it like a veteran in response to his very first question in the job, denying that the President had done so.
2. BellSouth and Verizon denied participation in the program, contradicting the USA Today report. Yet their statements are worded somewhat carefully, and Verizon’s denial seems inconsistent with the no-comment statement the company gave to USA Today before the story ran: “We do not comment on national security matters, we act in full compliance with the law and we are committed to safeguarding our customers’ privacy.” And if the companies have no involvement with the NSA it is strange that they took so many days to respond.
3. Senator Orrin Hatch said that two judges in the special FISA court were notified of the program and raised no objection. This seems to confirm the existence of the program, but it triggers another whole series of questions. (Which judges were told? By whom? In how much detail? Did they tell the other judges on the court? Was any formal action taken to approve the program?)
The end result of all this conflicting rumor and elliptical coyness is just one big mess. It seems clear that there is some program under which the NSA gathers domestic phone records, but given the phone company statements I don’t know how much more of the USA Today story to believe. The media and concerned citizens are left to practice a sort of Kremlinology on our own government, divining what is really going on behind the veil of secrecy from little hints such as these. This environment corrodes public trust in the intelligence community and its important national security work.
It’s no surprise that the NSA would stay tight-lipped, almost out of habit — after all, for a long part of its history the NSA’s very existence was at least officially a secret, although absolutely everyone knew about it. The joke was that the acronym stood for “No Such Agency.” The British Secret Service had the same policy of official nonexistence. But the NSA and the British Secret Service have acknowledged themselves now — indeed, each has a huge prominent headquarters building, in the Maryland suburbs and on the River Thames respectively. There seems to have been no obvious ill effect from admitting what everyone already knew. The previous charade of secrecy thus seems a little foolish.
So too with the existence of the NSA phone-record program. The cat is emphatically out of the bag and cannot be stuffed back in. Any terrorists worth being scared of understand that the NSA might look at their phone records (probably understood already, but certainly do now). Indeed, they can read all the specualtion in the press — for example this interesting “Explainer” item from Slate about the NSA’s likely use of social network analysis on the phone records.
It is hard to believe that providing very basic facts about the existence and operation of the phone-records program would give the bad guys much more information than they already can gather. Of course, I am not advocating spelling out operational details of secret surveillance methods in a press briefing. But once secrecy has become pointless, its harms greatly outweigh its benefits. That point has been reached with this secret. It is time to give Congress and the public a little detail and context, and let us judge for ourselves whether the initiative is legal, ethcial, and wise.
[...] I wrote previously about how the excessive secrecy surrounding the NSA’s collection and analysis of domestic phone records leaves the press and the public to engage in a sort of Kremlinology. This morning, to take one example, NPR correspondent Larry Abramson spoke about how journalists try to parse the lawyerly statements by BellSouth and Verizon denying their involvement in the program (contrary to the original report in USA Today), but end up unsure what to believe. [...]
[...] Yet placed against the backdrop of the NSA’s program to obtain comparable records about telephone calls, this assurance fades away. While details of the NSA program remain very sketchy (as I complained earlier), it seems clear that no search warrants were secured before the NSA obtained at least some data, and I am pretty confident that previously existing statutes required such warrants (as analyzed in the posts collected here). In the distinct category of recording telephone calls placed between the United States and other countries, the Administration has argued that warrants were not required because of a combination of the asserted Article II power to fight terrorism and a resolution Congress passed after the September 11th attacks authorizing the use of force against al Queda (fairly weak arguments in my view and the view of this memo by the nonpartisan Congressional Research Service). [...]
[...] It’s not clear to me how likely it is that infringers would be able to copy Web-Braille works and redistribute them to sighted readers on any large scale. Maybe there was some blind infringer out there who registered for the progam and then translated Web-Braille files in order to poach copyrighted material. But I am skeptical, and whatever NLS says now, its unwarranted caginess at the outset undermines their credibility about what really happened. (Kind of a more benign version of this situation). Besides, the statutory carveout provided by Congress should cover Web-Braille, with its specialized format, its registered users, and its authorized entities. So it seems likely that Mike has identified another over-cautious gatekeeper. [...]