NSA secret database report triggers fierce debate in Washington

http://www.usatoday.com/news/washington/2006-05-11-nsa-reax_x.htm

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WASHINGTON - A massive government database containing the phone
records of tens of millions of Americans - reported by USA TODAY on
Thursday - marks the modern intersection of two powerful emerging
forces: terrorism and technology.

And the firestorm sparked by disclosure of the National Security Agency
project mirrors a debate that dates to the nation's founding, and
before, over balancing the interests of the government with the rights
of individuals.

"It's an issue of our times - a huge issue," said Clayton Northouse,
editor of Protecting What Matters: Technology, Security, and Liberty
since 9/11, published last month.

VIDEO: Bush defends program | Sen. Leahy reacts

"In the lead-up to 9/11, a lot of the terrorists left a lot of
information trails that could have potentially been tracked down. ...
But then we bump up against the need to protect civil liberties in this
new environment. How can we maintain people's privacy while maintaining
the usefulness of the information?"

The White House moved quickly to try to shape the debate. President
Bush appeared before TV cameras midday Thursday to say the
administration has always acted within the law and protected Americans'
privacy while doing everything possible to prevent terrorist attacks.

"Al-Qaeda is our enemy, and we want to know their plans," Bush said
before heading to Mississippi to give a speech on Hurricane Katrina
relief. He didn't provide any specifics about the program, however, and
walked away without responding to questions from reporters.

On Capitol Hill, Democrats expressed outrage over the secret project,
and some leading Republicans - House Majority Leader John Boehner of
Ohio and Senate Judiciary Chairman Arlen Specter of Pennsylvania among
them - expressed concern.

"Are you telling me tens of millions of Americans are involved with
al-Qaeda?" Vermont Sen. Patrick Leahy, the ranking Democrat on the
Judiciary Committee, railed at a morning hearing. "These are tens of
millions of Americans who are not suspected of anything."

Specter said he would call executives from AT&T, Verizon and BellSouth
- the companies that supplied to the NSA their records on cellphone
and land-line calls made from millions of homes, businesses and
government offices - "to find out exactly what is going on."

The confirmation hearings scheduled to open next week on the nomination
of Air Force Gen. Michael Hayden, a former director of the NSA, to head
the CIA also are likely to become a forum for exploring questions about
what the program entailed and how it was approved.

Bush has argued that he has far-reaching authority to approve NSA
activities under his constitutional role as commander in chief. In the
past, he also has cited a congressional resolution, passed after the
terrorist attacks of Sept. 11, 2001, authorizing him to use "all
necessary and appropriate force" against those responsible for the
attacks.

"If all they're doing is have a computer program anonymously select
people who are making phone calls to known terrorists or something like
that, I don't see a problem," said Robert Turner, director of the
University of Virginia's Center for National Security Law.

"That's not comparable to going into our bedrooms or even listening to
our conversations," Turner said. "Stopping terrorist attacks is the
greatest of our national interests."

No warrants

Among the controversies over the database, however, is that it was
built without court warrants or the approval of the Foreign
Intelligence Surveillance Court, a panel of federal judges established
to issue secret warrants, according to people with direct knowledge of
the arrangement.

Some critics questioned whether the administration's warrantless
programs violate the Constitution's Fourth Amendment, which bars
"unreasonable searches and seizures" and requires warrants for
searches, as well as the 1978 Foreign Intelligence Surveillance Act
(FISA) that established the secret court.

Harold Koh, dean of Yale Law School and author of The National Security
Constitution, called the scope of the database "quite shocking."

"If they had gone to Congress and said, 'We want to do this without
probable cause, without warrants and without judicial review,' it never
would have been approved," said Koh, a former law clerk for the late
Supreme Court justice Harry Blackmun.

"I don't think any FISA court would have approved this kind of scale of
activity."

As a general rule, telecommunications companies require law enforcement
agencies to present a court order before they will turn over a
customer's phone records. Under Section 222 of the Communications Act,
first passed in 1934, phone companies are prohibited from giving out
information about their customers' calling habits.

Senate Finance Chairman Chuck Grassley, R-Iowa, questioned why the
phone companies would cooperate with the NSA.

"Why are the telephone companies not protecting their customers?" he
said. "They have a social responsibility to people who do business with
them to protect our privacy as long as there isn't some suspicion that
we're a terrorist or a criminal or something."

One major telecommunications company, Qwest, did refuse to participate
in the NSA program because of concerns about its expansiveness and the
lack of judicial oversight, USA TODAY reported.

Some Republicans defended the program and called the outcry against it
overblown.

"This is nuts," said Sen. Jon Kyl, R-Ariz. "We are in a war, and we
have got to collect intelligence on the enemy."

Finding where to draw the line

Since 9/11, Americans have debated and disagreed over how to balance
security with liberty.

As time has passed, the instinct to protect civil liberties has grown.
Four months after the attacks, in January 2002, Americans split 47%-49%
in the USA TODAY/CNN/Gallup Poll when asked whether the government
should take steps to prevent terrorism even if it meant violating basic
civil liberties.

Nearly four years later, in December 2005, however, when the question
was repeated, Americans by more than two to one - 65%-31% - said
the government shouldn't take steps against terrorism that would
violate basic civil liberties.

A year after the 9/11 attacks, in September 2002, 55% of Americans said
the Bush administration had been "about right" in restricting people's
liberties in order to fight terrorism; just 15% said the administration
had gone too far.

This year, the public is almost evenly divided on that question. In a
January 2006 survey, 40% said the administration had been about right,
but 38% said it had gone too far.

Even the friendly crowd gathered Thursday outside the Mississippi Coast
Coliseum in Biloxi, hoping for a glimpse of Bush, was divided on
whether the NSA program was acceptable.

"If you've got anything to hide, stay off the phone," Carol Cuevas, 57,
a banker from Gautier, Miss., advised with a laugh.

Nearby, Gladys Skinner, 42, a laundress from Gulfport, wasn't so sure.
She liked Bush but had qualms about the program. "It's invading
people's privacy," she said. "How can we be sure they're not
listening?"

Actually, the program doesn't involve monitoring the content of
telephone conversations, USA TODAY reported. The NSA is expert at using
computers to review vast quantities of digital data - such as phone
numbers - to identify patterns of activity.

Customers' names, street addresses and other personal information are
not being handed over as part of the program, USA TODAY reported. But
the telephone numbers the NSA collects can easily be cross-checked with
other databases to obtain that information.

A boost for Bush?

In terms of the likely political fallout from this controversy, some
Republicans argued that the debate could turn to Bush's advantage by
focusing on his efforts to fight terrorism - still the area in which
he gets his strongest ratings, though his standing on this and other
issues has eroded. Last month, 48% approved of Bush's handling of
terrorism; 50% disapproved.

"At first it sounds like, well, people's privacy is being violated, but
the more people learn about it, the more it plays to the president's
benefit," said GOP strategist Charlie Black, a regular adviser to the
Bush White House.

"If you think about it, going back to 9/11, every time the Democrats
have disagreed with the president on a significant security issue, they
have lost politically - every single time," Black said.

In 2004, Democrat John Kerry sought to tap unease over the Iraq war in
his challenge to Bush's re-election. But surveys of voters as they left
polling places in 2004 found that the president's stance on terrorism
was the strongest single factor behind his re-election.

Democratic strategist Peter Fenn said that issue may be losing its edge
for Bush. Fenn was assigned to examine the NSA in 1975 as a staffer on
the so-called Church Committee, a Senate panel that investigated
intelligence agency abuses in the wake of the Watergate scandal.

"On balance, voters have given the president a lot of latitude when it
comes to fighting terror and personal freedoms," Fenn said. "They have
given him the benefit of the doubt. But when our telephone companies
are turning over every telephone record without responding to any kind
of warrant, I think people are concerned about executive power run
amok."

He predicted the issue also would divide and disenchant some
conservatives worried about the expansion of government power. Bush's
support among conservatives has dipped significantly in recent months.

What Congress knew

Bush said "appropriate members of Congress, both Republican and
Democrat," had been briefed about the NSA program. Senate Majority
Leader Bill Frist, R-Tenn.; Senate Minority Leader Harry Reid, D-Nev.;
and House Minority Leader Nancy Pelosi, D-Calif., acknowledged
receiving some briefings.

Pelosi said, however, that she hadn't been told all of the information
included in the USA TODAY story. And all but a handful of lawmakers
learned of the program for the first time in the news account.

"Unfortunately, a lot of this goes on clandestinely, and ... it takes a
journalist to discover its existence," Northouse said. "Congress
doesn't know what's going on and is dependent on the news media to tell
them what's going on in DOD (Department of Defense) or the CIA, just
because there's no formal mechanisms for oversight."

The Pentagon has built several large databases of information, part of
its intelligence-gathering within the borders of the USA that has
dramatically expanded since 9/11.

A Pentagon data-mining program called Total Information Awareness (TIA)
provoked an enormous controversy when it was disclosed in 2003.

The project scanned information in e-mails and commercial databases of
health, financial and travel companies in the USA and overseas in an
effort to spot patterns linked to terrorism. The leader of the program
was John Poindexter, a Reagan national security adviser implicated in
the Iran-contra scandal.

After protests from both liberal and conservative lawmakers and
advocacy groups, Congress voted to prohibit the use of TIA technology
against Americans without congressional approval.

The objections to the telephone database Thursday also crossed party
and ideological lines.

"This is an outrageous invasion of privacy and a frightening expansion
of government power," said Bob Barr, a former Georgia congressman and
conservative Republican who served as one of the House managers of
President Clinton's impeachment.

Ralph Neas, president of the liberal group People for the American Way,
used similar language in calling the program "an unconscionable
infringement on the rights and freedoms that are the birthright of
every American."

He added, "We can destroy the terrorists without shredding the
Constitution and the Bill of Rights."

Boehner, the House Republican leader, said he is "concerned" about the
program. "I'm not sure why it was necessary for us to keep and have
that kind of information."

On the other hand, Sen. Jeff Sessions, R-Ala., argued that there was
nothing to worry about. "I don't think this action is nearly as
troublesome as being made out here," he said, "because they are not
tapping our phones."

Contributing: Leslie Cauley, David Jackson, Kathy Kiely, Andrea Stone,
wire reports
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Regards,

John M. Drake

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