The NSA and the Law

THE NSA AND THE LAW….David Ignatius provides a plausible guess about how the NSA is using the database of calling records they’ve collected over the past few years:

Suppose you lost your own cellphone and bought a new one, and people really needed to find out that new number. If they could search all calling records, they would soon find a number with the same pattern of traffic as your old one ? calls to your spouse, your kids, your office, your golf buddies. They wouldn’t have to listen to the calls themselves to know it was your phone. Simple pattern analysis would be adequate ? so long as they had access to all the records.

This, in simple terms, is what I suspect the NSA has done in tracking potential sleeper cells in the United States. The agency can sift through the haystack, if (and probably only if) it can search all the phone and e-mail records for links to numbers on a terrorist watch list. The computers do the work: They can examine hundreds of millions of calls to find the few red-hot links ? which can then be investigated under existing legal procedures.

Maybe so. But then he pinpoints the problem with such a program: it’s probably illegal. And additional resources and additional briefings aren’t a good answer:

These would be easy fixes, but they would duck the basic issue: Is it legal for the NSA to obtain and keep the nation’s phone records to identify who is getting calls from terrorists? Do Americans support that trade-off of privacy for security? It should be obvious now, as the temporary anti-terrorist structure created after Sept. 11 begins to crumble, that the only stable framework going forward will be one that brings these programs clearly and firmly under the rule of law.

Amen. It’s possible that the NSA programs that have been disclosed are reasonable ones. But if that’s the case, there’s no excuse not to have Congress pass a law making them clearly legal and setting firm boundaries on how they’re used. Hearings can be done in closed session if necessary, something that’s common for sensitive intelligence issues.

But Congress should have a say. No executive, regardless of who’s president, should be allowed to unilaterally decide for itself what’s legal and what’s not. That’s the job of Congress and the courts.

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