The USA Today reporting into the NSA’s purported program of scanning the phone records of most Americans for terrorist connections is coming under question. First, it appears that the FISA courts were indeed notified of the program without objections being raised:
Two judges on the secretive court that approves warrants for intelligence surveillance were told of the broad monitoring programs that have raised recent controversy, a Republican senator said Tuesday, connecting a court to knowledge of the collecting of millions of phone records for the first time.
[…]
Orrin Hatch, R-Utah, said that at least two of the chief judges on the Foreign Intelligence Surveillance Court had been informed since 2001 of White House-approved National Security Agency monitoring operations. “None raised any objections, as far as I know,” said Hatch, a member of a special Intelligence Committee panel appointed to oversee the NSA’s work.
Hatch made the comment in answering a question in an interview about recent reports of the government compiling lists of Americans’ phone calls. When pressed later, Hatch suggested he was also speaking broadly of the administration’s terror-related monitoring. Asked if the judges somehow approved the operations, Hatch said, “That is not their position, but they were informed.” An aide later said Hatch’s comments should in no way be considered confirmation of any efforts to collect phone records.
Moreover, the phone companies alleged to have turned the records over without a warrant are now steadfastly denying that they have done so.
Verizon, the country’s second-largest phone company, said yesterday that it had not provided local phone records to the National Security Agency as part of efforts to compile a database of calling records to track terrorist activities. The announcement, a day after BellSouth issued a similar statement, came in response to a report in USA Today last Thursday that the three biggest Bell companies had handed over their customer calling records to the security agency, including data on local calls, without warrants. But the statement by Verizon left open the possibility that MCI, the long-distance carrier it bought in January, did turn over such records — or that the unit, once absorbed into Verizon, had continued to do so. The company said Verizon had not provided customer records to the National Security Agency “from the time of the 9/11 attacks until just four months ago.”
[…]
AT&T yesterday repeated earlier statements that it could not comment on national security issues but that it cooperates with law enforcement agencies only when they have a court order. AT&T, the biggest Bell company, comprises the former SBC Communications and the AT&T long-distance business, which it acquired last year, adopting its name.
The other big Bell company, Qwest, has declined to comment, though its former chief executive, Joseph P. Nacchio, said through his lawyer last week that the company had rebuffed requests from the security agency to provide calling data in the aftermath of 9/11, citing a lack of legal process.
Wizbang’s Paul notes that, “It is interesting to note that the phone companies are not only denying that they gave over the data but they are making it clear they were never asked.”
This is all quite bizarre. We have the administration and key congressmen essentially acknowledging the program yet denying that they are doing so. At the same time, the phone companies are denying having participated.
Sean Hackbarth is also confused but offers some interesting speculation:
Verizon and BellSouth both say they weren’t even asked for phone records. But Qwest was and refused to turn them over. Is it possible the NSA talked to Qwest first then gave up asking the other Baby Bells for help after Qwest’s refusal? That would fit with what ex-Qwest CEO Joe Nacchio has stated along with BellSouth’s and Verizon’s comments. Did the NSA go the long distance route by working with AT&T (before being bought by SBC) and MCI (before being bought by Verizon)? Was the story a set-up to out leakers in the intel community?
Something strange is going on here but I have no idea what.
Update: Commenter Alan points to this post by Judd at Think Progress:
Ordinarily, a company that conceals their transactions and activities from the public would violate securities law. But an presidential memorandum signed by the President on May 5 allows the Director of National Intelligence, John Negroponte, to authorize a company to conceal activities related to national security. (See 15 U.S.C. 78m(b)(3)(A))
There is no evidence that this executive order has been used by John Negroponte with respect to the telcos. Of course, if it was used, we wouldn’t know about it.
Interesting.
