Newt on MtP: espionage

Former Speaker of the House of Representatives Newt Gingrich (R–GA) was the guest on the first half of this morning's NBC Meet the Press with Tim Russert [full transcript]. Newt went all over the map, making some criticisms of both the Democrats and the Republicans that were dead-on bullseyes, but then rambling off into total fabrications.

Read more...The interview began with the newest NSA scandal, the database of telephone call records of ordinary American citizens.

First of all, the amazing thing is that everything that has been done is totally legal. Just look at the specifics of what they're doing: it is totally legal. The real problem is, the Bush administration refuses to come up front and explain it in advance.

My regular readers may be surprised that I pretty much agree with that assessment. The Supreme Court has already established that you do not have a right to privacy with regard to the basic summary information about your telephone calls: the number you called, when, and for how long. In fact, I would even agree that it is entirely appropriate and necessary for the government to track down associates of people who are under investigation for connections to terrorists, particularly since the information can be used to cross people off the list. For instance, one of the 9/11 hijackers had a girlfriend with whom he had frequent contact, but she was not involved in, and in fact was not even aware of, the terrorist conspiracy. A quick check of her phone records would have revealed that none of the other known terrorists had any contact with her, moving her quickly into the "probably not involved" column.

However, I believe that far greater safeguards are needed to rein in the obvious potential for rampant abuse of this database. The Congress needs to have rigorous oversight over the program as a whole, and there needs to be a clear paper trail documenting every single use of the database. If there is a specific person in focus ("Who are the associates of Person X?"), that person's identity must be noted. On the other hand, if the database is being used for a broader dragnet, the specific parameters of the search (e.g., domestic call under 2 minutes, inbound or outbound, followed within 5 minutes by an overseas call; or more than 3 instances of the same two numbers appearing in immediate proximity) must be recorded. There must be a paper trail to ensure that the database is not being used to track down the political affiliations, personal details, or other private information about innocent people, especially political opponents of the present administration.

Also, even though I believe that the government's program is probably legal, the telephone companies' participation in it is probably not. Specifically, it represents a breach of contract with their customers. Take, for example, this excerpt from AT&T's privacy policy:

We must disclose information, when requested, to comply with court orders or subpoenas. We will also share information when necessary to prevent unlawful use of communications services, when necessary to repair network outages, and when a customer dials 911 and information regarding their location is transmitted to a public safety agency. [emphasis added]

The NSA presented neither a court order nor a subpoena, and a blanket release of all call details cannot be justified as "necessary to prevent unlawful use." In short, AT&T unambiguously violated its own privacy policy, and it did so because the NSA did not use legitimate channels to obtain the raw data.

The other NSA program that has been in the news lately, the surveillance of the content of telephone conversations to or from "U.S. persons" (U.S. citizens anywhere in the world, plus anyone physically in the United States), is unambiguously illegal and unconstitutional. There is no wiggle room in the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In other words, you have the right to refuse any search of your person, your home, your papers, and your belongings, unless the authorities have a warrant, signed by a judge, supported by a sworn affidavit, stating specifically what is to be searched and what the authorities are looking for. There are very limited exceptions, such as allowing the police to search someone who is being detained for weapons, but the government is not allowed to go on "fishing expeditions" in your private details.

Newt goes on to make a false dichotomy between the NSA programs as currently operated and abject surrender to the terrorists:

[Suppose] you find out one morning that we now have five terrorists in the U.S. who are part of an active network who want to destroy New York City or Buffalo or Atlanta, and the government says, "You know, we could've tracked every call they made for the last 10 years, but that would’ve been wrong, Tim. So we don't know who they've been working with. We don’t know what their network is and we can't stop it." ... Nobody who's making normal phone calls should be at risk. But the idea that we're going to say to the United States government, for libertarian reasons, "We'd rather lose a city than have you gather data," I think is totally out of touch with the danger of the modern world.

The choice is not "allow the NSA the unbridled authority to collect whatever data it wants about anyone and everyone, and use that data however it wants, without oversight by Congress or the courts" versus "let the terrorists kill us all." If some group of people is in a position to destroy New York City or Buffalo or Atlanta, and we don't have any solid leads on anyone in that group sufficient to get a judge to sign a warrant to look into their "social network," then all the raw data in the world won't help us one bit.

I don't know who said it, but, We're looking for a needle in a haystack. Just piling on more hay isn't going to help.

Technorati tags: Newt Gingrich, Meet the Press, MtP, Russert, NSA, Wiretapping, Constitution, War on Terror, Politics, Washington, Bush