Given Gen. Michael Hayden is nominated to be the next director of the CIA, the USA Today has released a story they have obviously been sitting on, until they felt they could maximize sales.

Although politically motivated and a compromise of intelligence sources and methods, we know now. Given it was all secret, will the USA Today be charged with any crimes if the government is not found to have violated the law?

Since the cat is out of the bag, we have to consider if the government has violated any laws in their national security efforts. I feel it might be possible in regards to negotiations with Qwest Communications. The one communications company that refused NSA requests for data. I’ll get into that later, but lets see if the government violated any laws outside of that. I don’t think so. Because there is no law that forbids the government from requesting this data. FISA covers actual listening in on calls. Not the calling patterns of one phone number to another. So I know of no law that the federal government broke in making their requests for data. And this kind of request is nothing new, although after 9/11 it’s understandable that the request is larger then before.

…
The government is collecting “external” data on domestic phone calls but is not intercepting “internals,” a term for the actual content of the communication, according to a U.S. intelligence official familiar with the program. This kind of data collection from phone companies is not uncommon; it’s been done before, though never on this large a scale, the official said. The data are used for “social network analysis,” the official said, meaning to study how terrorist networks contact each other and how they are tied together.
…

Data mining makes good sense. If you know terrorists are working in a unique pattern then it makes sense to analyze all calling patterns, to try and discover matches. This is what the CAPPS system does with airline screening. Look for patterns and when you get a match investigate further. This is how several of the 9/11 hijackers were flagged, but because of the weak follow-up policy of that time they were still allowed on planes.

So I think the Feds are in the clear in making requests for the data and using it. It’s not a wiretap. They don’t know what the call was about. If they want to match numbers with individuals, then that is a matter of further investigation and whether they would need judicial authorization to do that is a matter worthy of debate. If the calls were domestic and within the same state I would think they might need some judicial approval to match the number with a name, even if they did the matching using their own internal systems. Making the match of names and numbers is easy for them to do, but I don’t think that would be legaest’s legal team might be an issue.

…
According to sources familiar with the events, Qwest’s CEO at the time, Joe Nacchio, was deeply troubled by the NSA’s assertion that Qwest didn’t need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers’ information and how that information might be used.
…
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as “product” in intelligence circles — with other intelligence groups. Even so, Qwest’s lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest’s participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest’s patriotic side: In one meeting, an NSA representative suggested that Qwest’s refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest’s foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA’s explanation did little to satisfy Qwest’s lawyers. “They told (Qwest) they didn’t want to do that because FISA might not agree with them,” one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.

In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest’s financial health. But Qwest’s legal questions about the NSA request remained.

Unable to reach agreement, Nacchio’s successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.

No the feds did not need FISA approval, but attempting to play on Qwest’s attempts to get government contracts may have crossed a line. If the claims of talk about future government work are true, then Qwest was hit with a form of extortion. Give us what we want, or we will make sure you don’t get any more big government contracts. When Qwest was simply concerned about following the law. Qwest suggested that there be a letter issued from the U.S. Attorney General’s office. If the NSA felt they could not get that, then they should have left Qwest alone. And if they felt the US Attorney General would not agree, then who felt this effort was legal to begin with? Given we know the current attorney general has had no problem defending the executive order issued for warrantless wiretaps of calls involving a party outside of the USA. If the NSA felt they did not need FISA approval, they should not have felt there would be a problem getting approval from the Attorney General. Unless they felt there was some law out there that the Attorney General might feel they were violating. Now that we know, this has to be investigated. Did the NSA try to use extortion against Qwest Communications and why might they feel that the Attorney General would not grant approval for data requests?

Some of my fellow Conservative Bloggers and Conservative Talkers are giving a strident defense to this entire program. I can’t say I am in total agreement. While I agree with them in principle, I feel there are some details related to Qwest Communications that do require investigation. I’m hearing some folks on talk radio claim Qwest Communications was not being a good American company. I disagree. I think both those who cooperated fully and those who had concerns were both doing what they felt was best and that neither made a bad call. I have concerns that the NSA would not feel they could get a letter from the Attorney General. For crying out loud, even when Martin Luther King Jr.’s phone was tapped then Attorney General Bobby Kennedy approved it. Since when has an Attorney General had problems with approving something that is legal (or possibly even illegal)?

Here are some other views from Stop the ACLU and Michelle Malkin.

update 7/3/2006 4:54PM: Looks like this story really did not happen.

Even if every detail was true, the USA Today should have never reported this information. It only helps the enemy.