No Warrant, No Problem: Government Compiles Illegal Database of Every American's Phone Records

We are all suspects.

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime.

. . .

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

Well, well, well. So the NSA on secret illegal orders from the Bush Administration has built and is continuing to build an electronic database of every single telephone call made or received in America.

It seems we now *know* know why the government claimed the State Secrets Privilege in the case against AT&T.

As revealed by USA Today and written up in this Washington Post article, this dangerous program is cause for concern for EVERY American Patriot.

The potential for expansion to even more dangerous areas is almost limitless.

The potential for abuse is huge.

Blackmail is a clear threat.

The potential for mistakes is huge, particularly as this program is apparently one of the ways the government decides who to target with the eavesdropping program:

We learn now that data-collection is Phase I of the domestic spying program:

Government access to call records is related to the previously disclosed eavesdropping program, sources said, because it helps the NSA choose its targets for listening. The mathematical techniques known as "link analysis" and "pattern analysis," they said, give grounds for suspicion that can result in further investigation.

That domestic spying program, as we have discussed before, is hugely ineffective. We now know that the program begins by casting such a huge net (billions of calls) that it results in thousands of tips a month. As the New York Times reported, these "tips" were fruitless, often leading FBI agents to dead-end investigations of grandmothers and Pizza Huts.

I mean really, I don't have anything to do with Kevin Bacon, never met him, but I'm within three degrees of separation from the guy. Is there any doubt that countless people could get wrongfully swept into the dragnet from the illegal data-mining program to the illegal eavesdropping program because they once talked to a guy who once bought a pizza from a guy who lived next door to a terrorist?

And what other secret illegal programs is this lawless Administration hiding? What happened to the government's protestations that the illegal NSA spying revealed earlier was only between "known terrorists" and only when one party was overseas? Clearly, these statements were intended to fool the gullible into believing that the scope of the Administration's illegality was not nearly as widespread as it clearly is. No such belief can be reasonably held any longer. On this count, I'm going to repeat myself once again:

It seems needless to say, but the Bush Administration has quite consciously given us little reason to doubt that other significant illegal spying programs exist beyond the specific illegal N.S.A. program admitted by the President and testified to by Al Gonzalez.

Indeed, take a look at the constant repeated qualifications Gonzalez gave during his testimony (noted in the update here):

Careful C-SPAN watchers and transcript readers likely remember that Attorney General Gonzalez repeatedly limited his remarks in his unsworn Judiciary Committee testimony on warrantless wiretapping to "the program," "the program in which I'm testifying," "the program which I'm testifying about today," "the program that I'm talking about today," "the program that the president has confirmed," and "the program in which I'm testifying." The following paragraphs rather speak for themselves:

BIDEN: . . . That's the assertion. It's only emanating from a foreign country, correct?

GONZALES: Yes, sir: authorization of the program I'm talking about.
. . .
SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

. . .

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.
. . .
KOHL: . . . And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.
. . .
SESSIONS: Thank you, Attorney General Gonzales.

I believe you've faithfully fulfilled your responsibility to give your best, honest answers to the questions so far. I think they've been very effective.

If people have listened, I think they will feel much better about the program that that the president has authorized and that you are explaining. Because some of the news articles, in particular, gave the impression that there's widespread of wiretapping of American citizens in domestic situations and in every instance there's an international call.

Most of us by plain language would understand "international" to be different from domestic. And the president has limited this to international calls in which one or more parties are connected to Al Qaida.

Is that correct?

GONZALES: Sir, the program that I'm talking about today, yes, is limited to international calls.

Don't believe that what the Government is doing is illegal? As usual, bloggers are on the case. See Glenn Greenwald, Marty Lederman (and more here), Kate Martin at the ACS's blog, Anonymous Liberal, and Orin Kerr. SusanG at the Daily Kos has 10 good reasons that YOU should be upset about the entire concept of this illegal datamining operation.

Not only did they deliberately mislead Congress and the American people about the scope of their lawbreaking, but they demonstrated conscious knowledge that what they were doing was illegal. The government AVOIDED judicial oversight from FISA where is was requested; of the big telcos, only QUEST refused to assist NSA without a court order. When Qwest requested a ruling from the FISA court or the U.S. Attorney's office, the Bush Administration REFUSED:

Among the big telecommunications companies, only Qwest has refused to help the NSA, the sources said. According to multiple sources, Qwest declined to participate because it was uneasy about the legal implications of handing over customer information to the government without warrants.

Qwest's refusal to participate has left the NSA with a hole in its database. Based in Denver, Qwest provides local phone service to 14 million customers in 14 states in the West and Northwest. But AT&T and Verizon also provide some services — primarily long-distance and wireless — to people who live in Qwest's region. Therefore, they can provide the NSA with at least some access in that area.

. . .

The NSA's domestic program raises legal questions. Historically, AT&T and the regional phone companies have required law enforcement agencies to present a court order before they would even consider turning over a customer's calling data.

. . .

One major telecommunications company declined to participate in the program: Qwest.

According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

There is one clear conclusion: this country and its citizens have been repeatedly deceived and spied on by their "representatives" without any justification in law. The Executive is continuing is grab of the constitutional powers of the Judiciary and the Legislature, exercising deceit, doubletalk and demagoguery. This country is in a state of constitutional crisis.