February 9, 2006


Limiting NSA Spying Is Inconsistent With Rationale, Critics Say (Dan Eggen, February 8, 2006, Washington Post)

The question from both Democratic and Republican members of the Senate Judiciary Committee at a hearing Monday was: Why stop there? Why not intercept domestic calls, as well?

"I don't understand why you would limit your eavesdropping only to foreign conversations," Sen. Joseph R. Biden Jr. (D-Del.) told Attorney General Alberto R. Gonzales.

The committee's debate highlighted one of the most significant apparent contradictions in the administration's defense of the spying program, under which the National Security Agency intercepts some calls to and from the United States and contacts overseas.

Many national security law experts said yesterday that the distinction makes little sense legally, because the administration concluded that President Bush has the constitutional authority to order wiretaps on U.S. citizens and residents without court approval.

Once that threshold is crossed, numerous experts said yesterday, there is little reason to limit the kind of calls that can be intercepted. It is irrelevant where the other contact is located, they said.

"The rationale for this surveillance has nothing to do with anything tied to a border," said Geoffrey R. Stone, a University of Chicago law professor critical of the administration's legal justifications for the NSA program.

"There's no pragmatic reason and no principled reason why, if it is okay for NSA to listen in on phone calls between someone in Detroit and Pakistan without a warrant, they also can't listen in on a phone call between Detroit and New York," Stone said.

Bruce Fein, a deputy attorney general in the Reagan administration who is among a number of prominent Republican critics of the NSA program, said the argument underscores what he views as a lack of consistency in the administration's legal arguments.

"If it's good enough for international calls, then it should be good enough for domestic calls, too," Fein said.

Gonzales told senators that Bush had considered including purely domestic communications in the spying program. The idea was rejected in part because of fear of public outcry. He also said the Justice Department had not fully analyzed the legal issues of such a move.

The distinction doesn't seem that odd. Once you have the names of the guys calling and being called within the States you'd presumably surveil them continuously as a simple criminal matter -- the Rosenbergs went to Federal Court, after all, not a military tribunal -- but if everyone says we can treat them as war criminals instead that would allow more leaway, so go for it!

Posted by Orrin Judd at February 9, 2006 8:42 PM

Outgoing calls, especially with a country code prefix, are easier to tag. Filter out calls originating from phones of established businesses and to to places like Japan, South America, and Australia, but pay attention to calls to Iran, Iraq, Afghanistan, Pakistan, the Gulf states, and the job becomes easier.

Poooor babies: the focus group must have told them they didn't give a damn if someone was doing an international call to a state harboring terrorists, but would have gotten incensed if they suspected fishing a-la Clinton, so they're pissed that Bush didn't act like Hitler.

Posted by: Ptah at February 9, 2006 9:52 PM

i want a t-shirt that shows the current dem leadership photoshopped in with a picture of the rosenbergs. throw che, mao, pol pot, stalin, and fidel in there for good measure.

Posted by: toe at February 10, 2006 12:01 PM