http://mediamatters.org/
Myths and falsehoods on the NSA domestic call-tracking program
Summary: Media Matters documents the misleading or false claims
advanced by media figures and Bush administration supporters in the
wake of news that the National Security Agency had since 2001 been
secretly collecting records of phone calls made by millions of
Americans.
On May 11, USA Today reported that the National Security Agency (NSA)
had since 2001 been secretly collecting records of phone calls made by
millions of Americans. The article reported that the NSA, in
cooperation with three major phone companies, "reaches into homes and
businesses across the nation by amassing information about the calls
of ordinary Americans -- most of whom aren't suspected of any crime"
and uses the data "to analyze calling patterns in an effort to detect
terrorist activity."
The public disclosure of the domestic call tracking program provoked
bipartisan criticism and calls for a full congressional investigation.
Further, it revived the contentious debate over the NSA's warrantless
eavesdropping on U.S. residents' international communications. As The
New York Times revealed last year, the president authorized the agency
to conduct such surveillance shortly after the September 11, 2001,
terrorist attacks, in apparent violation of the Foreign Intelligence
Surveillance Act (FISA), which requires court approval in order to
conduct domestic electronic surveillance for foreign intelligence
purposes.
As with the exposure of the warrantless surveillance program in
December 2005, media figures and Bush supporters have advanced
numerous misleading or false claims in the wake of the news, as Media
Matters for America documents below.
#1: The NSA has access only to Americans' phone numbers and call
records -- not names, addresses or other identifying information.
In reporting on the NSA call-tracking program, some media figures have
emphasized that the phone companies are not providing callers' names
and addresses to the agency -- only their phone numbers and records of
their various calls. Examples include:
a.. CNN national security correspondent David Ensor: The phone
companies provide the NSA "the phone numbers they call -- not the
names, not the addresses of the people they called." [CNN
International's Your World Today, 5/11/06]
b.. NBC senior investigative correspondent Lisa Myers: "The data
provided by AT&T, Verizon, and Bell South reportedly includes phone
calls made and received but not customers' names and addresses."
[NBC's Today, 5/11/06]
c.. ABC chief investigative correspondent Brian Ross: "Officials say
the phone records, with no names attached, are fed into NSA computers,
programmed to track patterns between the U.S. and places where
suspected terrorists might be, such as Afghanistan and Pakistan."
[ABC's World News Tonight, 5/11/06]
d.. Fox News host John Gibson: "[T]he NSA is compiling phone calling
patterns in an effort to track terrorists here in this country. No
addresses or names are reportedly part of that information being
collected." [Fox News' The Big Story with John Gibson, 5/11/06]
e.. Fox News correspondent Carl Cameron: "The data records that the
NSA is obtaining do not contain customer names, addresses, or anything
about the actual call content." [Fox News' Special Report with Brit
Hume, 5/11/06]
f.. Fox News correspondent Jim Angle: "But others of both parties said
this is far different and far less intrusive than actually listening
to suspected terrorist communications. In this case, the NSA is
reportedly collecting nothing more than phone call records, without
any names or addresses." [Fox News' Special Report with Brit Hume,
5/11/06] But the original May 11 USA Today article on the program made
clear that phone customers' names, addresses, and "other personal
information" can "easily" be obtained by cross-referencing their phone
numbers with other databases, as Media Matters for America noted. A
May 12 Washington Post article further reported that "the government
has many means of identifying account owners, including access to
commercial databases from ChoicePoint and LexisNexis."
Similarly, some reporters have failed to challenge Republican
lawmakers' assertions that the data collected by the NSA is limited to
phone numbers. For instance, in a May 12 article, Associated Press
staff writer Katherine Shrader uncritically reported Sen. Wayne
Allard's (R-CO) claim that "[t]elephone customers' names, addresses
and other personal information have not been handed over to NSA as
part of this program."
#2: The NSA is only tracking phone calls, not listening to them.
In describing the specifics of the NSA call-tracking program, certain media
figures have claimed that the NSA only captures call records and does not
use the data for surveillance. On the May 11 edition of CNN's Live From ...,
CNN congressional correspondent Ed Henry reported, "[T]he government appears
to be ... collecting these records but not actually eavesdropping, not
listening in on the calls, an important distinction." On the May 11 edition
of Fox News' Hannity & Colmes, co-host Sean Hannity claimed, "[A]ll we're
looking at are patterns ... we're not looking at the content, we're not
listening to people's calls."
But in affirmatively claiming that the NSA is not using the data for
surveillance, Henry and Hannity are in effect asserting that the NSA's
call-tracking program operates independent of the NSA's warrantless
domestic eavesdropping program. They offer no support for this
claim. Indeed, a May 12 Washington Post article reported that the two
programs are directly linked, as the data provided to the NSA by the
major phone companies assists the agency in selecting targets for
warrantless surveillance. From the May 12 Post article:
Government access to call records is related to the previously disclosed
eavesdropping program, sources said, because it helps the NSA choose its
targets for listening. The mathematical techniques known as 'link analysis'
and 'pattern analysis,' they said, give grounds for suspicion that can
result in further investigation.
Despite this report, the Post and ABC News conducted a poll on the
call-tracking program that asserted that the NSA is not "listening to
or recording the conversations," as Media Matters noted. Sixty-three
percent of respondents found the program, as misleadingly described,
acceptable.
#3: The Clinton administration implemented a more intrusive surveillance
program.
Shortly after the disclosure of the NSA's warrantless domestic
surveillance program in December 2005, conservative media figures
attempted to draw a parallel between the Clinton administration's use
of a surveillance program known as Echelon and the warrantless
domestic eavesdropping authorized by the Bush administration. In the
wake of this new revelation, media have equated the NSA call-tracking
operation and Echelon. For instance, a May 12 New York Post editorial
claimed that "the program has clear antecedents in a widely rumored
surveillance program called Echelon, which was hotly debated across
the Internet back in 1999 -- nearly two years before President Bush
took office." On the May 12 edition Fox News' Fox & Friends, co-host
Brian Kilmeade said, "This has been happening since 2000. This isn't
one man's policy. The foundation was already laid for this six years
ago."
But as Media Matters noted in response to the earlier comparisons, in
contrast with the Bush administration's surveillance program, the
eavesdropping of U.S. residents conducted under Echelon was carried
out in compliance with FISA, according to then-CIA Director George
J. Tenet. In his April 12, 2002, testimony before the House
Intelligence Committee Tenet denied that Echelon was used to spy on
U.S residents without a warrant. He said, "We do not target their
conversations for collection in the United States unless a FISA
warrant has been obtained from the FISA court by the Justice
Department." Then-National Security Agency director Lt. Gen. Michael
V. Hayden -- currently Bush's nominee for CIA director -- also
appeared before the committee and testified, "If [an] American person
is in the United States of America, I must have a court order before I
initiate any collection [of communications] against him or her."
By contrast, since the disclosure of their warrantless domestic
surveillance program, Bush has asserted -- and administration
officials such as Hayden have repeated -- that he possesses the
authority to eavesdrop on U.S. residents' communications without FISA
approval.
Conservative media figures such as Hannity and syndicated columnist
Michelle Malkin have gone a step further, however, and claimed that
Echelon was more intrusive than the Bush administration's current
surveillance activities. On the May 11 Hannity & Colmes, Hannity said,
"Under the Echelon program there is the ability to monitor, as I said,
the substance and content. ... So it seems odd to me that we have a
far more intrusive program that liberals support, and now they're all
up in arms about a far less intrusive program [the NSA call-tracking
program]." In a May 12 column, Malkin wrote, "The paper [USA Today]
admits the kind of data collection involved is not new. The Clinton
administration's Echelon program was far more intrusive."
As with Hannity's claim that the NSA is not using the phone records
data to intercept communications of Americans, these assertions rest
on the assumption that the data collection program operates
independently of the NSA warrantless domestic surveillance
program. But as noted above, the Post has reported that the two are
directly linked.
#4: Only Democrats are criticizing the NSA program.
In reporting on the NSA data collection program, various media figures
have cast the controversy as a purely partisan dispute by suggesting
that only Democrats have criticized the program. In fact, a number of
prominent Republican congressmen -- current and former -- have also
denounced the program or at least voiced skepticism. As Media Matters
noted, Sens. Arlen Specter (R-PA) and Lindsey O. Graham (R-SC), and
House Majority Leader John Boehner (R-OH) all raised questions and
criticism of the program following its disclosure. According to a May
12 USA Today article, Sen. Charles Grassley (R-IA) "questioned why the
phone companies would cooperate with the NSA." According to Grassley:
"Why are the telephone companies not protecting their customers?
... They have a social responsibility to people who do business with
them to protect our privacy as long as there isn't some suspicion that
we're a terrorist or a criminal or something."
On the May 11 edition of Hannity & Colmes, former House Speaker Newt
Gingrich (R-GA) said:
GINGRICH: I'm not going to defend the indefensible ... I'm prepared
to defend a very aggressive anti-terrorist campaign, and I'm prepared
to defend the idea that the government ought to know who's making the
calls, as long as that information is only used against terrorists,
and as long as the Congress knows that it's under way. But I don't
think the way they've handled this can be defended by reasonable
people. It is sloppy.
On the May 11 edition of MSNBC's Scarborough Country, host and former
Rep. Joe Scarborough (R-FL) said: "Memo to the president and
congressional leaders who signed up on this lousy program: We don't
trust you anymore."
And yet, on the May 11 edition of Fox News' The Big Story with John
Gibson, homeland defense correspondent Catherine Herridge reported:
"The NSA issue dominated the session of the Senate Judiciary Committee
today with senior Democrats on this committee saying the new
revelation will impact Hayden's confirmation." On the May 11 edition
of Special Report, Fox News chief White House correspondent Carl
Cameron -- during a "hard news" segment -- attacked Democrats for
"complaining about the NSA programs without really knowing what they
are" and echoed Republicans in saying that "is precisely why so many
Republicans say Democrats just aren't serious about security."
#5: "Experts agree" this type of data collection is "legal"
A variety of media figures have stated unequivocally that the NSA data
collection program is "legal," or that "experts agree" the program is
legal. There are, however, a number of experts who have said that the
administration might be acting illegally. The New York Times reported
on May 12: "Kate Martin, director of the Center for National Security
Studies [CNSS], said, 'If they don't get a court order, it's a crime.'
She said that while the F.B.I. might be able to get access to phone
collection databases by using an administrative subpoena, her reading
of federal law was that the N.S.A. would be banned from doing so
without court approval. Depending on how it was conducted, it may have
also have been a crime." The CNSS also issued a statement featured on
its website, stating, "On May 11, 2006, USA Today reported that the
NSA has been secretly collecting the phone records of millions of
Americans. The President held a news briefing in which he carefully
failed to deny that the program exists. Such surveillance, if not
authorized by the FISA court, is illegal." A May 12 USA Today article
quoted Georgetown University law professor David Cole saying: "This
may well be another example where the Bush administration, in secret,
decided to bypass the courts and contravene federal law."
In addition, Newsday reported on May 12:
However, James Dempsey of the nonprofit Center for Democracy and
Technology said several laws appear to apply to the described program.
Real-time collection of data would require the NSA to get a warrant
either from a criminal court or from the special court created by the
Foreign Surveillance Intelligence Act, he said.
And if the NSA is collecting historical records, the telecommunica-
tions companies face the Electronic Communications Privacy Act and
another law that prohibits sharing information without a subpoena or
court order, he said.
Nevertheless, on the May 11 broadcast of NBC's Nightly News, senior
investigative correspondent Lisa Myers reported: "Some experts agree
that the program, if conducted properly, is legal. But some warn there
is also great potential for abuse." Myers failed to note that there
are experts who have gone beyond warning of the potential for abuse to
challenge the reported program's legality. Similarly, ABC News chief
investigative correspondent Brian Ross reported on the May 11
broadcast of World News Tonight: "In fact, many experts we talked to
today said the program is legal, they believe, based on a U.S. Supreme
Court decision that held that phone customers have no expectation of
privacy for the phone numbers they dial. What worries some, of course,
Elizabeth, is what the government does next if they detect what they
think is a suspicious pattern."
But, while the Supreme Court ruled in Smith v. Maryland (1979) that
the use of "pen registers" -- devices that record only the numbers
dialed and received at a specific phone -- is not a violation of
Fourth Amendment rights, some legal experts have noted that the NSA's
phone data collection program might violate federal statutory law. As
George Washington University law professor Orin Kerr explained in a
May 11 entry on his weblog:
To summarize, my very preliminary sense is that there are no Fourth
Amendment issues here but a number of statutory problems under
statutes such as FISA and the pen register statute. Of course, all of
the statutory questions are subject to the possible argument that
Article II trumps those statutes. As I have mentioned before, I don't
see the support for the strong Article II argument in existing
caselaw, but there is a good chance that the Administration's legal
argument in support of the new law will rely on it.
On the May 11 edition of MSNBC's Hardball with Chris Matthews, Roger
Cressey, NBC counterterrorism analyst and former counterterrorism
advisor to Presidents Clinton and George W. Bush, claimed that
"assembling the database in and of itself is not illegal." Fox News
host Bill O'Reilly claimed on the May 11 edition of The O'Reilly
Factor that "there's nobody who believes that the Bush administration
is going to lose any of this stuff in a court of law."
#6: NSA program could have prevented 9-11 attacks
A number of media figures have suggested that the NSA data collection
program could have prevented the September 11, 2001, terrorist attacks
had it been in place before then. This same claim was advanced by the
Bush administration to defend the NSA's warrantless domestic
surveillance program when its existence was publicy disclosed in
December 2005, as Media Matters noted. This argument, however, is
completely unsubstantiated. As Media Matters noted when Hayden
advanced this claim in January, the 9-11 Commission and congressional
investigators determined that it was primarily bureaucratic problems
-- rather than a lack of information -- that were responsible for the
security breakdown. The Washington Post reported on January 24:
Hayden echoed a claim earlier this month by Vice President [Dick]
Cheney that, if the NSA program had been in place prior to the
Sept. 11, 2001, attacks, "it is my professional judgment that we would
have detected some of the 9/11 al Qaeda operatives in the United
States."
Like Cheney, however, Hayden did not mention that the NSA, CIA and FBI
had significant information about two of the leading hijackers as
early as January 2000 but failed to keep track of them or capitalize
on the information, according to the Sept. 11 commission and
others. He also did not mention NSA intercepts warning of the attacks
the day before, but not translated until Sept. 12, 2001.
But Matthews, on the May 11 edition of Hardball, said to Sen. Ken Salazar
(D-CO):
MATTHEWS: Well, here's where the tire hits the road, Senator.
Suppose our authorities had broken up 9-11 the day before, because
they noticed telephone traffic which suggested 19 people were about to
grab four planes and take them in to buildings. Would that have
justified the program if that had happened?
On the May 11 edition of Special Report with Brit Hume, Fox News chief
Washington correspondent Jim Angle reported:
ANGLE: For instance, if this had been in place before 9-11, and the
U.S. had the phone number used by Al Qaeda planner Khalid Shaikh
Mohammed, it could have searched the database to locate which numbers
he was calling in the U.S., which might have led to the hijackers
before they boarded their planes.
Angle's suggestion that the program could have provided the NSA with
alleged 9-11 mastermind Khalid Shaik Mohammed's phone number, thus
leading authorities to discover the 9-11 plot, ignored the fact that
the NSA was monitoring Mohammed's phone calls the day before the
attacks and captured a conversation between him and lead hijacker
Mohammed Atta. But, as Knight Ridder reported on June 7, 2002:
A secretive U.S. eavesdropping agency monitored telephone conversations
before Sept. 11 between the suspected commander of the terror attacks
and the alleged chief hijacker, but did not share the information with
other intelligence agencies, U.S. officials said Thursday.
The officials, speaking on condition of anonymity, said the conversa-
tions between Khalid Shaikh Mohammed and Mohammed Atta were intercep-
ted by the National Security Agency, or NSA, an intelligence agency
that monitors and decodes foreign communications.
The NSA failed to share the intercepts with the CIA or other U.S.
intelligence agencies, the officials told Knight Ridder. It also
failed to promptly translate some intercepted Arabic-language
conversations, a senior intelligence official said.
#7: Veracity of USA Today report is in question
Some in the media have suggested that the original USA Today report on
the NSA's call-tracking program may be unfounded. For instance, on the
May 11 edition of Special Report, host and Fox News Washington managing
editor Brit Hume cited the USA Today story and added, "Whether that
was actually true or not, it was enough to set off another uproar on
Capitol Hill over allegations of domestic spying." Similarly, Fox
News senior judicial analyst Andrew Napolitano declared on the May 11
edition of Fox News' The Big Story that we need to know the "facts"
about the NSA program. He then said of the USA Today article, "The
newspaper is just the newspaper reporter's opinions."
In fact, while the Bush administration has not confirmed or denied the
substance of the USA Today report, several members of Congress have
confirmed the existence of the program. According to a May 11
Bloomberg News Service article, Sen. Trent Lott (R-MS), a member of
the Senate Intelligence Committee, disclosed that he had been briefed
about the program. Further, on the May 11 edition of PBS' The NewsHour
with Jim Lehrer, Sen. Kit Bond (R-MO) said, "I'm a member of the
subcommittee of the Intelligence Committee that's been thoroughly
briefed on this program and other programs."
- J.K. & S.S.M.
Media Matters (mediamatters@telecom-digest.org)