NSA Program: More Questions than Answers

The USA Today reporting into the NSA’s purported program of scanning the phone records of most Americans for terrorist connections is coming under question. First, it appears that the FISA courts were indeed notified of the program without objections being raised:

Two judges on the secretive court that approves warrants for intelligence surveillance were told of the broad monitoring programs that have raised recent controversy, a Republican senator said Tuesday, connecting a court to knowledge of the collecting of millions of phone records for the first time.

[…]

Orrin Hatch, R-Utah, said that at least two of the chief judges on the Foreign Intelligence Surveillance Court had been informed since 2001 of White House-approved National Security Agency monitoring operations. “None raised any objections, as far as I know,” said Hatch, a member of a special Intelligence Committee panel appointed to oversee the NSA’s work.

Hatch made the comment in answering a question in an interview about recent reports of the government compiling lists of Americans’ phone calls. When pressed later, Hatch suggested he was also speaking broadly of the administration’s terror-related monitoring. Asked if the judges somehow approved the operations, Hatch said, “That is not their position, but they were informed.” An aide later said Hatch’s comments should in no way be considered confirmation of any efforts to collect phone records.

Moreover, the phone companies alleged to have turned the records over without a warrant are now steadfastly denying that they have done so.

Verizon, the country’s second-largest phone company, said yesterday that it had not provided local phone records to the National Security Agency as part of efforts to compile a database of calling records to track terrorist activities. The announcement, a day after BellSouth issued a similar statement, came in response to a report in USA Today last Thursday that the three biggest Bell companies had handed over their customer calling records to the security agency, including data on local calls, without warrants. But the statement by Verizon left open the possibility that MCI, the long-distance carrier it bought in January, did turn over such records — or that the unit, once absorbed into Verizon, had continued to do so. The company said Verizon had not provided customer records to the National Security Agency “from the time of the 9/11 attacks until just four months ago.”

[…]

AT&T yesterday repeated earlier statements that it could not comment on national security issues but that it cooperates with law enforcement agencies only when they have a court order. AT&T, the biggest Bell company, comprises the former SBC Communications and the AT&T long-distance business, which it acquired last year, adopting its name.

The other big Bell company, Qwest, has declined to comment, though its former chief executive, Joseph P. Nacchio, said through his lawyer last week that the company had rebuffed requests from the security agency to provide calling data in the aftermath of 9/11, citing a lack of legal process.

Wizbang’s Paul notes that, “It is interesting to note that the phone companies are not only denying that they gave over the data but they are making it clear they were never asked.”

This is all quite bizarre. We have the administration and key congressmen essentially acknowledging the program yet denying that they are doing so. At the same time, the phone companies are denying having participated.

Sean Hackbarth
is also confused but offers some interesting speculation:

Verizon and BellSouth both say they weren’t even asked for phone records. But Qwest was and refused to turn them over. Is it possible the NSA talked to Qwest first then gave up asking the other Baby Bells for help after Qwest’s refusal? That would fit with what ex-Qwest CEO Joe Nacchio has stated along with BellSouth’s and Verizon’s comments. Did the NSA go the long distance route by working with AT&T (before being bought by SBC) and MCI (before being bought by Verizon)? Was the story a set-up to out leakers in the intel community?

Something strange is going on here but I have no idea what.

Update: Commenter Alan points to this post by Judd at Think Progress:

Ordinarily, a company that conceals their transactions and activities from the public would violate securities law. But an presidential memorandum signed by the President on May 5 allows the Director of National Intelligence, John Negroponte, to authorize a company to conceal activities related to national security. (See 15 U.S.C. 78m(b)(3)(A))

There is no evidence that this executive order has been used by John Negroponte with respect to the telcos. Of course, if it was used, we wouldn’t know about it.

Interesting.

FILED UNDER: General, ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Moe Lane says:

    Somebody’s playing Who Likes To Leak?

  2. James Joyner says:

    Moe: Not inconceivable but, damn, it’s a dangerous game to play. And, with the president’s poll numbers at such a low point, an odd choice politically as well.

  3. Alan says:
  4. Christopher says:

    Gee, do you think you may be having a hard time knowing what’s going on because it is supposed to be SECRET????

  5. James Joyner says:

    Christopher: Sure. I’ve blogged on that aspect numerous times. It is odd, however, that Bush and his team have repeatedly essentially confirmed the USAT NSA story.

  6. In regards to Verizon, there denial doesn’t seem to include MCI, which they only recently acquired. I commented on that here.

    Also, since the USAT story cited AT&T and not BellSouth, which was recently bought by AT&T (and according to the quote above, AT&T isn’t commenting). The whole this company buying that company thing complicates all of this. For sure these companies are trying to avoid lawsuits.

    Further, there is still the matter of Qwest stating publically that they were asked for the records in question. As such, something isn’t connecting here.

    In regards to FISA: it is better than nothing, but to simply “inform” two FISA judges strikes me as wholly inadequate. It is like the wiretap briefings to a handful of Congressional leaders. Simple briefings are not oversight. I commented on that here.

    The whole thing is a jumbled mess, to be sure. However, I don’t find that either of these stories settles much of anything.

  7. And (as per James’ comment above): there is clearly something to the USAT story, as the administration has essentially confirmed its existence.

    I think all these press releases by phone companies has more to do with lawsuits than with what the NSA did or did not do.

  8. In WWII, General Patton was put in charge of an “army” of stage props as part of convincing the Germans we would invade at Pas De Calais. One of the double agents the allies controlled informed the Germans less than 24 hours before D-Day that there would be a feint against Normandy that was intended to draw the Germans away from the Pas De Calais. No I know what you are thinking. Ike lied so that fewer GIs would die.

    Could it possibly be that part of the counter-attack against the leaks is to put out more FUD (fear uncertainty and doubt) to confuse the bad guys (by this I mean the terrorists, not the MSM). If the Nazi press were to ask Ike about the Allied invasion plans for Norway or Greece, do you think he would immediately say “No, we are going in to Normandy, not those places”. If you notice in Snow’s first briefing, he was very careful to answer Helen’s questions by first saying the administration neither confirms nor denies the USA today story.

    I admit I have my doubts, but I would love to believe that the people hunting the terrorists are smart enough to make the terrorist chase their tails on occasion.

  9. legion says:

    I think all these press releases by phone companies has more to do with lawsuits than with what the NSA did or did not do.

    Bingo. If the telcos provided these records, it was almost certainly in direct violation of their customer privacy policies. Unless there’s some sort of warrant or gov’t authorization to lie about it. But if that authorization is itself classified, the telcos can’t defend themselves in court from evidence that is already public, like gov’t admissions (implicit or otherwise) about the program.

    If my logic here is correct so far, it looks like any public admission by the gov’t utterly sabotages the telcos’ ability to stave off gi-normous settlements in civil cases. In which case, the Bush admin may have just seriously screwed that entire industry…

  10. Paul says:

    Christopher: Sure. I�ve blogged on that aspect numerous times. It is odd, however, that Bush and his team have repeatedly essentially confirmed the USAT NSA story.

    James,

    I’m not 100% sure they have. Remember one of the “Bush is the devil” scandals, the media ended up blaming Bush for their bad reporting since he didn’t deny it fast enough they assumed it was true? (I forget which faux scandal it was)

    My point being, the government is a very big place. And no one person knows about every program. (especially the secret ones) I would not be at all surprised if the WH didn’t even know anything about the program and had to research it themselves.

    In the mean time they fall for the trap that the reporter got it mostly right and they make statements that appear to support its existence.

    -It’s happened before.-

    As you note, the confirmation is squishy. I’m not so sure they ain’t just treating water till they get their facts together.

    Or maybe I’m over thinking it. 😉

    P

  11. Bithead says:

    Note, however, that Verizon’s denial specifically mentions LOCAL records.

    Local records would not entail calls made to another country. Iran, for example.

    But let’s see, here.
    First, we hear that Rove has already been indicted. (Untrue)
    Then we hear the telcos are coughing up local calling records… (also not true.)

    Almost makes you wonder what ELSE the press is lying to us about to cast this WH in a bad light, doesn’t it?

  12. RA says:

    Never trust anything you read in the MSM until it has been verified by a reliable source.

  13. legion says:

    First of all, Bithead, ‘Verizion’ is not the same as ‘all telcos’ – unlike the Rove indictment hoohah (which was truly bogus), there’s still a lot to come before we get the real story behind this.

    And RA, since outfits like Fox News, the Washington Times, and the WSJ are also part of the MSM, what exactly would you consider a ‘reliable source’?

  14. Bithead says:

    First of all, Bithead, â??Verizionâ?? is not the same as â??all telcosâ??

    True.

    Now, there’s also BellSouth which gave comments and word parsing similar to Verizon. But still, that’s not all of them.

    So, go and dig up quotes from the other companies cited, where local calling info was given up. I’m convinced you won’t find any.

    Note also, the different tone and very different word parsing taken by AT&T/SBC, whose records WOULD help the program, being as they’re LD oriented…. specifically international traffic.

    I say again, it’s international traffic they’re after. And I note that Hackbarth and I are on the same page, here.

  15. Ugh says:

    One also has to wonder why the DOJ is petitioning to dismiss the EFF’s lawsuit against AT&T for essentially this same thing based upon the state secrets privilege. That’s going kind of far for “smoking out the leakers.”

  16. TomH says:

    Since we are all speculating here… NSA has access to the main routing system in order to conduct the surveillance that has been admitted to. Wouldn’t it be a technically simple matter to record only the numbers dates and times of all traffic? So the telecos may be parsing their story carefully for legal reasons, but they prob never had to ‘turn over records,’ at all. NSA just gathered the data directly. Just guessing, here.

  17. Alan says:
  18. legion says:

    Since we are all speculating hereâ?¦

    Quite so, Tom. But that’s one of the most disturbing things about this whole affair. A free society cannot exist without a transparent government. Sure, there are things, operational specifics, that need to be kept secret. But any government that claims to be representing its citizens must allow some sort of open discussion on what kinds of things they’re doing, and what we’re willing to allow them to do in our name. Normally, that’s supposed to be done via Congressional oversight, but the so-called permanent majority gave up on that responsibility long ago…