Since USA Today broke word about a massive [tag]NSA[/tag] [tag]database[/tag] that catalogs most of the nation’s [tag]domestic[/tag] [tag]phone calls[/tag], one of the principal defenses for the program is that officials aren’t [tag]listen[/tag]ing to Americans’ conversations, just tracking who calls whom. The administration could [tag]eavesdrop[/tag], the [tag]Bush[/tag] gang argues, but it’s decided that it won’t.
Today, the New Yorker’s [tag]Seymour Hersh[/tag] adds some pertinent details to this. He spoke with two people who worked on the NSA call-tracking program who said, at least early on, the agency didn’t listen in on Americans calls, and felt no need to get a [tag]warrant[/tag] because “there’s no personal identifier involved, other than the metadata from a call being placed.”
That didn’t last.
“After you hit something, you have to figure out what to do with it,” the Administration intelligence official told me. The next step, theoretically, could have been to get a suspect’s name and go to the FISA court for a warrant to listen in. One problem, however, was the volume and the ambiguity of the data that had already been generated. (“There’s too many calls and not enough judges in the world,” the former senior intelligence official said.) The agency would also have had to reveal how far it had gone, and how many Americans were involved. And there was a risk that the court could shut down the program.
Instead, the N.S.A. began, in some cases, to eavesdrop on [tag]callers[/tag] (often using computers to listen for key words) or to investigate them using traditional police methods. A government consultant told me that tens of thousands of Americans had had their calls monitored in one way or the other. “In the old days, you needed probable cause to listen in,” the consultant explained. “But you could not listen in to generate probable cause. What they’re doing is a violation of the spirit of the law.” One C.I.A. officer told me that the Administration, by not approaching the [tag]FISA[/tag] [tag]court[/tag] early on, had made it much harder to go to the court later. (emphasis added)
Marc Rotenberg, the executive director of the Electronic Privacy Information Center, told Hersh, “The N.S.A. had a lot of latitude under FISA to get the data it needed. I think the White House purposefully ignored the [tag]law[/tag], because the [tag]President[/tag] did not want to do the monitoring under FISA. There is a strong commitment inside the intelligence community to obey the law, and the community is getting dragged into the mud on this.”
Stay tuned.