An article in today's WaPo does a good job of explaining why the Bush administration's program of domestic wiretapping is illegal...and ineffective. According to the article...
Fewer than 10 U.S. citizens or residents a year, according to an authoritative account, have aroused enough suspicion during warrantless eavesdropping to justify interception of their domestic calls, as well. That step still requires a warrant from a federal judge, for which the government must supply evidence of probable cause.
But...
The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.
The program has touched many more Americans than that. Surveillance takes place in several stages, officials said, the earliest by machine. Computer-controlled systems collect and sift basic information about hundreds of thousands of faxes, e-mails and telephone calls into and out of the United States before selecting the ones for scrutiny by human eyes and ears.
Successive stages of filtering grow more intrusive as artificial intelligence systems rank voice and data traffic in order of likeliest interest to human analysts. But intelligence officers, who test the computer judgments by listening initially to brief fragments of conversation, "wash out" most of the leads within days or weeks.
The scale of warrantless surveillance, and the high proportion of bystanders swept in, sheds new light on Bush's circumvention of the courts. National security lawyers, in and out of government, said the washout rate raised fresh doubts about the program's lawfulness under the Fourth Amendment, because a search cannot be judged "reasonable" if it is based on evidence that experience shows to be unreliable. Other officials said the disclosures might shift the terms of public debate, altering perceptions about the balance between privacy lost and security gained.
Attorney General Alberto Gonzales is preparing to defend the program in front of the Senate Judiciary Committee starting Monday. He is scheduled to be the only witness to appear before the panel. There are some fine legal hairs to be split to determine whether Gonzales has already lied under oath about the program before this same committee or just simply given "misleading testimony."
Mr. Gonzales's credibility is especially suspect among Democrats. Senator Russell D. Feingold of Wisconsin, a member of the Judiciary Committee, is angry over a response from Mr. Gonzales during his confirmation hearing when Mr. Feingold asked, "Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?"
At the time, the spy program was well under way. Mr. Gonzales denied that the administration was engaged in anything illegal and said, "So what we're really discussing is a hypothetical situation."
Mr. Feingold, who voted against Mr. Gonzales's nomination, sent Mr. Gonzales a letter last week, reminding him of the exchange — "misleading testimony," he called it — and telling him to be prepared to explain it on Monday.
In an interview on Friday, Mr. Feingold said, "He hid the fact that the program existed."
Meanwhile, the Electronic Frontier Foundation is fighting the program in an unusual way. They've filed a class-action lawsuit against AT&T accusing the company of violating the law and customer privacy by collaborating with the NSA...
"The NSA program is apparently the biggest fishing expedition ever devised, scanning millions of ordinary Americans' phone calls and emails for 'suspicious' patterns, and it's the collaboration of US telecom companies like AT&T that makes it possible," said EFF Staff Attorney Kevin Bankston. "When the government defends spying on Americans by saying, 'If you're talking to terrorists we want to know about it,' that's not even close to the whole story."
In the lawsuit, EFF alleges that AT&T, in addition to allowing the NSA direct access to the phone and Internet communications passing over its network, has given the government unfettered access to its over 300 terabyte "Daytona" database of caller information—one of the largest databases in the world.
"AT&T's customers reasonably expect that their communications are private and have long trusted AT&T to follow the law and protect that privacy. Unfortunately, AT&T has betrayed that trust," said EFF Senior Staff Attorney Lee Tien. "At the NSA's request, AT&T eviscerated the legal safeguards required by Congress and the courts with a keystroke."
By opening its network and databases to unrestricted spying by the government, EFF alleges that AT&T has violated the privacy of AT&T customers and the people they call and email, as well as broken longstanding communications privacy laws.
While other organizations are suing the government directly, EFF is seeking to protect Americans' privacy by stopping the collaboration of AT&T with the illegal NSA spying program and making it economically impossible for AT&T to continue to give its customers' information to the government.
"Congress has set up strong laws protecting the privacy of your communications, strictly limiting when telephone and Internet companies can subject your phone calls to government scrutiny," said EFF Staff Attorney Kurt Opsahl. "The companies that have betrayed their customers' trust by illegally handing the NSA direct access to their networks and databases must be brought to account. AT&T needs to put a sign on its door that reads, 'Come Back With a Warrant.'"
In the suit filed Tuesday, EFF is representing the class of all AT&T customers nationwide. EFF is seeking an injunction to stop AT&T participation in the illegal NSA program, as well as billions of dollars in damages for violation of federal privacy laws. Working with EFF in the lawsuit are the law firms Traber & Voorhees, and Lerach Coughlin Stoia Geller Rudman & Robbins LLP.
