So now we know about the even nastier program that made BushCo so determined to cover up the warrantless wiretaps. The NSA has been compiling a master database of all telephone calls made in the United States: not the content, but who called whom and when.
What’s truly appalling is that I don’t think it’s even illegal. If memory serves, Title III doesn’t cover what used to be called “pen registers.” USA Today suggests that the companies may be violating the Communications Act of 1933 by giving the information, but the NSA doesn’t seem to be breaking any laws by receiving that information. (Wrong: see update.)
Still, I don’t think the voters are going to hold still for it. Not with a President the country already distrusts.
Update Orin Kerr, who actually knows this stuff, says that there probably aren’t Fourth Amendment issues because the content of the conversations isn’t being captured, but that the statutory issues probably track those of the previously disclosed warrantless wiretapping on international calls. That is, the new program is illegal unless the Use of Force Resolution implicitly writes a loophole into FISA. The fact that when Qwest wanted to ask the FISA court for permission the government backed off is pretty convincing.
Let me take this opportunity to say how much I resent Orin’s arrogant, elitist assumption that just because he knows something the rest of us don’t his opinion is somehow entitled to additional weight. Doesn’t he understand that expertise is reality-based, and that reality has a well-known liberal bias? The country has twice voted for ignorance over knowledge (well, if you want to be technical about it, the country voted that way once and the Supreme Court did so the other time). So Orin’s claim that knowledge is somehow better than ignorance is not only unpatriotic but undemocratic. So there!