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From the Archives: NSA Surveillance Seven Years Earlier

Watch a debate over the NSA’s phone call surveillance program, which aired on the May 12, 2006 NewsHour with Jim Lehrer.

Under a top-secret court order issued using a provision of the Patriot Act, the United States government has been collecting phone records of millions of American Verizon customers for at least seven years, Sen. Dianne Feinstein, the chairman of the Senate Intelligence Committee, said Thursday.

Feinstein’s defense that the order was “lawful” came after The Guardian newspaper disclosed late Wednesday the copy of the order requiring Verizon on an “ongoing, daily basis” provide the National Security Agency with meta data of all telephone records from the U.S. to other countries.

In May 2006, USA Today reported that the NSA, under then-CIA Nominee Gen. Michael Hayden’s leadership, had, since 9/11, secretly collected tens of millions of phone call records from the nation’s three largest telephone companies — Verizon, AT&T and BellSouth.

We uncovered this conversation Jeffrey Brown held on May 12, 2006 with Bryan Cunningham, a former lawyer for the National Security Council in the Bush administration and with the CIA during the Clinton years, and Kate Martin, director of the Center for National Security Studies, about the legal merits of the government’s — at the time — alleged data collection program. Martin appeared again on Thursday’s NewsHour.

JEFFREY BROWN: Mr. Cunningham, starting with you, from what you know so far, is this program legal?

BRYAN CUNNINGHAM: I would say it’s almost certainly absolutely legal and constitutional unless there are facts, obviously, that we don’t know about.

First of all the United States Supreme Court said in 1979 that Americans do not have any expectation of privacy in telephone toll records. And, therefore, the Fourth Amendment warrant does not apply and that probably why polls are showing most Americans are not too exercised about this because the Supreme Court got it right in terms of what they expect of these records.

Secondly, the, apparently the records were turned over voluntarily by the telephone company to the government. So the government would not even have to go to court to get legal process to do this.

And thirdly, if the government did need to or did decide forth benefit of the companies to go to court, there are a number of mechanisms in existing law that would allow them to get the right kind of legal authorities without ever implicating the Foreign Intelligence Surveillance Act, because these are not content of communication. So I think it’s very clearly legal.

JEFFREY BROWN: Kate Martin, what is your reading of the law?

KATE MARTIN: Well, I couldn’t disagree more. The Congress explicitly protected the privacy of such telephone records. And after the Supreme Court held that the Fourth Amendment didn’t apply to seizures of these kinds of telephone records, Congress passed a whole series of laws. One of them is called the Stored Communications Act, pen register laws. What they say is that the telephone companies may not voluntarily disclose the information to a government entity. They can only disclose the information to government entity like the NSA if they are served with a court order or a subpoena. And it’s my assumption that the NSA had no court order, it could not get a subpoena, and I don’t think it would be entitled to a court order under the laws.

JEFFREY BROWN: Mr. Cunningham made a distinction, as I have heard elsewhere, between collecting phone records, and gathering names or content. You don’t see that distinction?

KATE MARTIN: I do see that distinction. Gathering — listening to the contents of telephone calls or e-mails requires a warrant. And that is a separate set of laws, not the stored communications laws, and not the pen register laws. But what the Congress has done is set up a whole framework, because it disagreed with the Supreme Court about whether or not people have a reasonable expectation of privacy, and that the government will not know everyone you’ve called, everyone who’s called you, how long, how many times those phone numbers came in and out of your phone, and if the government did want to find that out, it would get a court order.

Now the FBI can get a court order it is not at all clear that the NSA would ever be entitled to a court order. And without an order, it was clearly illegal.

Our political analysts — syndicated columnist Mark Shields and New York Times columnist David Brooks — were also on hand that day seven years ago. We digitized that interview for you below.

May 12, 2006, analysis with Mark Shields and David Brooks.

They touched on the controversy surrounding the National Security Agency’s collection of phone records, as well as then-President George W. Bush’s low approval ratings with even further gloom trending on the Hill.

RAY SUAREZ: Mark, one of the big stories this week as we just heard, the National Security Agency’s collection of phone records, is this going to play differently from the earlier discussions of surveillance of overseas phone calls?

MARK SHIELDS: Yes, I think it will, Ray. I mean, the president told us when the original disclosure was made, it was a terror surveillance program, that we fiercely protected the privacy of all Americans. And so you are led to believe that if you are calling Kabul or Indonesia, or Yemen on a regular basis, you may very well have been listened — your phone call might have been monitored.

But now we’re talking about 224 million phone users, and their records. And the overnight poll said, well, people said that’s okay. I don’t know. I think upon reflection, there is a sense of that this goes beyond what was described at the first — why didn’t they get FISA approval.

Were the cases in some instances so flimsy that they even compliant tribunal like FISA, Foreign Intelligence Surveillance Act court wouldn’t give it to them? And I think, you know, everybody has, whether you are calling your bookie, whether there are people doing day trading, whether they are calling a 900 number in New Jersey, I think that there is a sense of perhaps privacy being violated here in a way that the president had not described at all at the time of the initial disclosure.

RAY SUAREZ: Well, David, what do you think? Because everyone has a phone, virtually, this is different from the surveys lance of overseas phone calls.

DAVID BROOKS: So far, it doesn’t seem that way. I mean, the original poll, the poll that I saw, I guess in the Washington Post, somewhere said that 63 percent approved the program. 57 percent, I think it was, said even if it is my own phone on these records, they support the program.

I think basically people think this is a legitimate way, if the NSA professionals want to do this; they are prepared to defer to the NSA professionals who seem to be doing it by the book for the NSA, which is a pretty good agency.

And so they feel, you know, they don’t want to be attacked. And if they can use these records, this compendium of records, they find a bad guy, they want to find out who that bad guy called, I think most people will accept it. I think on Capitol Hill, I think you see two things. You see, A, general support for the program I think instinctively among Republicans, especially, but also a little anger that they weren’t told about the extent of it last December. I mean, we knew they were doing this data mining last December. We knew that there were millions of phone calls being made.

We didn’t know from the White House that it was purely domestic, as well as the international calls, so there was a little bit of upset that the White House wasn’t forthcoming but as for the substance, I don’t think it will be a political problem.

For more on the phone records story, watch Thursday’s NewsHour.

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