News-Record.com

The Hill magazine reports today that Republicans on the Senate Judiciary Committee have cut a deal with Chairman Arlen Specter, R-Pa., to hold hearings on the National Security Agency's warrantless-wiretapping program.

Specter had sought a requirement that the secret Foreign Intelligence Surveillance Court be asked to rule on the legality and constitutionality of the NSA program. But he now says he's dropping that requirement in favor of one that would allow the FISA court to rule only if a plaintiff with legal standing (that is, someone who claims to have suffered actual damage and isn't just asking for an opinion on the legality of the program) appeals to the court. As a practical matter, this change creates all sorts of roadblocks against the likelihood that the FISA court would ever get the chance to rule on the program.

So: If the administration is so confident that the program is legal and constitutional, why is it so reluctant to let the FISA court review it? Remember, one FISA judge already has quit in protest over this very program. Lawyer Glenn Greenwald asks the same question:

One would think that if [administration officials] really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.

Without the provision which was originally "demanded" by Sen. Specter, it is basically impossible for any plaintiff to ever challenge the legality of the NSA program. In very general terms, in order to have standing to bring such a suit, a plaintiff would have to prove that they have been specifically injured by the warrantless eavesdropping beyond the injuries of an average citizen. But the program is secret and there have been no investigations into it. As a result, nobody knows whose calls have been intercepted without warrants.

Therefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit -- namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained.

Greenwald also makes this interesting point:

It is always worth noting that nothing in any of these bills immunizes the administration from being held accountable for its previous and ongoing violations of FISA. These bills simply render legal on a going forward basis warrantless eavesdropping. They do not make these programs retroactively legal.

Thus, absent any legal defense that a court will buy (and those offered so far by the program's defenders -- that the authorization to use force against 9/11 terrorists and/or the president's inherent warmaking powers make the program legal and constitutional, FISA itself and the Fourth Amendment be damned -- have appeared pretty weak), the administration remains guilty of multiple felony violations of the Foreign Intelligence Surveillance Act, subject to both criminal prosecution and civil liability.

In related news, BellSouth is denying that it has provided bulk customer phone records to the NSA. Interestingly, however, it has not asked USA Today to retract or correct its earlier report to the contrary.

Is it telling the truth? I don't know. It might well be telling the complete truth. Or it might be engaging in a little Clintonian parsing -- agreeing, for example, to let the NSA install its hardware and software on its system ... or not trying to look too hard for any covert attempts by NSA to do so. Again, I do not know. My point is that BellSouth's statement does not completely shut the door on its participation in the NSA program. The article notes, for example, that while the company denies having a contract with NSA, it doesn't answer the question of whether it has a contract with NSA's government parent, the Department of Defense.

More questions ....

UPDATE: In this Atlanta Journal-Constitution article (annoying free registration required), BellSouth's denial is a bit broader and more emphatic:

BellSouth spokesman Jeff Battcher said Monday that the company had, in the days since the report, conducted a review of the allegations. Ackerman, Battcher said, did not approve an NSA request to give out records.

"We can find no instances where Mr. [CEO Duane] Ackerman has been asked to give any information to the NSA," Battcher said. "He has not signed off on it because he's never been asked."

In fact, Battcher said the company was not aware it had received any requests from the NSA. "To the best of our knowledge, we cannot find where we've ever gotten a request," he said.

On the other hand, the story goes on to say, if the government didn't approach BellSouth, that might have been because it didn't need to:

BellSouth's rebuttal adds another twist to a still-developing story. But it does not mean the overall gist of USA Today's account — that a huge database was collected — is incorrect.

Indeed, BellSouth is a different kind of carrier than AT&T, Verizon and Qwest in a crucial way: BellSouth does not own an international or nationwide long-distance network. When a caller in, say, Atlanta dials someone in Seattle, the call travels mostly over non-BellSouth lines. To obtain a record of such a call, the NSA would not need BellSouth. They could get it from the owner of the network, such as AT&T.

Curiouser and curiouser ....