Specter to Summon Telcos on NSA Domestic Surveillance

BellSouth “doesn’t and hasn’t provided confidential information” of subscribers without proper legal authority, a spokesman said. He said BellSouth is “very careful with customers’ records.” He also said BellSouth doesn’t have a contract with NSA. AT&T said in a statement that it helps govt. surveillance “strictly within the law and under the most stringent conditions.” A Verizon spokesman said “we act in full compliance with the law and we are committed to safeguarding our customers’ privacy.”

Phone companies are “going to be asked to come in and testify about what they have been doing,” Specter said at a Judiciary business meeting. “If not, I'm prepared to consider subpoenas,” Specter said: “I'm determined to get to the bottom of this… We intend to… try to find out what’s going on and whether it’s constitutional.”

Several members of Congress demanded hearings in the Senate and House Commerce Committees, but spokesman for the committees said they weren’t prepared to respond. House Commerce Oversight Subcommittee Ranking Member Stupak (D- Mich.) said the Commerce Committee “needs to step forward, examine these issues and determine whether legislative remedies are necessary.” Sen. Nelson (D-Fla.) asked the Senate Commerce Committee to look into the matter. All Democrats on the House Commerce Committee sent a letter to Chmn. Barton (R-Tex.) asking for hearings.

“I am extremely concerned by the potential implications of this program on Americans’ personal privacy,” said Nelson, who urged immediate hearings and summoning the company CEOs to talk about their participation: “The hearing should include closed sessions, if appropriate.”

President Bush said the govt. doesn’t listen to domestic phone calls without court approval. Bush said in a statement that the intelligence activities he authorized are “lawful” and target al Qaeda and its known affiliates. “The privacy of ordinary Americans is fiercely protected in all our activities,” Bush said, adding that he’s briefed “appropriate members of Congress, both Republican and Democrat.”

Sen. Kennedy (D-Mass.) said he supported giving the President power to intercept terrorists, but “what we're talking about today are ordinary citizens where there is no suspicion of wrongdoing.” Kennedy criticized the Bush Administration as circumventing the legal system: “There is no oversight whatsoever.” Responding to Kennedy’s comments, Specter said Attorney Gen. Alberto Gonzalez could be asked to appear before the committee to discuss the issue.

“This Administration’s arrogance and abuse of power should concern all Americans,” said Sen. Feingold (D-Wis.): “Congress needs to find out exactly what the Administration is doing and whether it is legal… We can effectively fight terrorism and protect privacy… but only if we have a President who believes in these principles.”

“The NSA now stands for Now Spying on Americans,” said Rep. Markey (D-Mass.), ranking member, House Telecom Subcommittee. “AT&T should be renamed Anytime They Talk. Their new slogan ‘reach out and tap someone’ should send a shiver down the spine of all Americans.”

DoJ Closes Investigation

An attempt to investigate the surveillance program took an odd twist when the Dept. of Justice told Rep. Hinchey (D- N.Y.) late Wed. that it lacked the security clearances to conduct a probe. Hinchey and 3 colleagues had asked the Office of Professional Responsibility (OPR) in Jan. to examine the agency’s involvement with the domestic surveillance program, according to a statement to reporters from Hinchey’s office.

Although OPR said an investigation was under way in Feb., the office announced it closed its probe after being unable to procure security clearances. Hinchey said he suspected the Bush Administration blocked the probe.

The shutdown of the investigation infuriated Sen. Kerry (D-Mass.) who was giving a speech Thurs. at American U.: “How many times will government secrecy shield decision- makers from any kind of accountability?” Kerry asked: “Enough is enough. It is long overdue for this Congress to end the days of rollover and rubber stamp and finally assert its power of advise and consent.”

Sen. Leahy (D-Vt.) also was angry that OPR’s investigation into the NSA program was shut down. It could complicate the nomination of Steven Bradbury, the acting asst. attorney gen.-Office of Legal Counsel, who’s responsible for legal opinions of the attorney general and giving advice to the White House counsel and other govt. agencies, Leahy said. He said a bipartisan group of members would insist on “responsive answers and needed information.”

House Judiciary Committee Ranking Member Conyers (D- Mich.) led a group of 72 House Democrats that filed court papers late Wed. seeking to end the wiretapping program. The members filed an amicus brief in U.S. district courts in Detroit and N.Y. that are reviewing challenges to the NSA initiative. Conyers said the latest developments “clearly point to the urgent need for oversight and review of this program.” “Congress has failed to provide this critical oversight which has led us to the courts,” he said. The Administration is due to respond to the complaints and to motions for summary judgment late next week.

The brief shows that Americans won’t tolerate the govt. “snooping into their calls and e-mails without court approval,” said ACLU Assoc. Legal Dir. Ann Beeson. In the brief, the lawmakers argued that Congress never authorized the e-surveillance program through the Foreign Intelligence Surveillance Act (FISA) or the Authorization for Use of Military Force in the days after 9/11. It asks the court to stop the program immediately. “Congress dealt with this issue authoritatively almost 30 years ago -- warrantless spying on American soil is flatly prohibited,” Conyers said, citing the Church Committee’s investigation into wiretapping in the mid-1970s. After hundreds of witnesses testified and 14 reports were issued, lawmakers enacted FISA.

Missing Cellphone Bill

Markey questioned whether the NSA program was linked to the disappearance of the cellphone privacy bill (HR-4943) from the House floor where it was set to be considered 2 weeks ago. In a letter sent to House Speaker Hastert (D- Ill.) Thurs., Markey said he wanted to report “the mysterious disappearance of a bill that was snatched from the House floor.” The bill was passed out of the Commerce Committee with no controversy, Markey said, but with no notice, it “has not been seen or heard from since.”

A company that was working on the Commerce Committee’s investigation of cellphone pretexting claimed the committee pulled the bill at the request of the Intelligence Committee, said Rob Douglas, pres.-PrivacyToday.com. Douglas said that unlike a similar bill that the House passed which came out of the Judiciary Committee, the Commerce bill didn’t exempt intelligence agencies from collecting Americans’ phone records,: “The only conclusion that can be drawn is that Congress is moving to legalize the mass collection of domestic phone call records.”

Douglas said the story also puts a “white hot spotlight” on the Electronic Frontier Foundation’s suit, in which former AT&T employee Mark Klein is the star witness; on Sen. Specter’s (R-Pa.) hearings on the topic, which had drawn lukewarm support; and on confirmation consideration for Gen. Michael Hayden as CIA chief.

In the last round of revelations President Bush “very carefully admitted to a very narrow program and made it clear they were still hiding other programs,” said Kate Martin, dir.-Center for National Security Studies. This time around it’s clear the program is much broader than was known, she said, and if true it “clearly violates the law.” If the govt. gets phone records in real time, federal law says it’s a crime to use a pen register or trap and trade device without a court order, she said, and imposes criminal penalties for violations. Stored phone records still require a court order or a subpoena, she said, though there’s no criminal provision and would be a matter for civil court.

CATO Institute Information Policy Studies Dir. Jim Harper said revelations about the NSA program means it can no longer be called a “terrorist surveillance program” because the database in question apparently extends to every American’s phone calls. “It is sometimes an exaggeration to talk about Big Brother. In this case, it is not,” he said. The phone surveillance database is worrisome because it “flies in the face of Fourth Amendment principles that call for reasonableness or probable cause,” he said. It’s not reasonable to monitor every American’s phone use in a search for terrorists, Harper said.

The program wasn’t authorized by Capitol Hill, and it contradicts Congress’s intent in pulling financing for the controversial Total Information Awareness program over privacy worries about data mining, he said. Besides, data mining for terrorism -- the idea that searching through masses of data can find terrorist patterns or suspicious anomalies -- is demonstrably flawed, Harper said.

Arguing that the database includes information only about calls, and not what was said isn’t persuasive, either, Harper said. Traffic information itself is revealing -- it includes the times and frequency of citizens’ calls “to their doctors, psychologists, paramours, and priests,” and there’s no way to know whether the surveillance is limited only to phone traffic information, he said.

The story won’t have any bearing on the EFF-AT&T case, said Al Gidari of Perkins Coie, a firm focusing on telecom national security surveillance. “We just don’t have enough information to know” what was or wasn’t done to the extent that it would effect the trial,” he said. Gidari agreed that the recent shutdown of the privacy bill was related to the USA Today story. When it became clear that law enforcement agencies were among the bigger purchasers of these lists, he said, it posed a conundrum for lawmakers now dealing with a potential controversy. “This is only going to get bigger with time,” he added.