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A look inside ‘Bush’s Law’

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Kai Ryssdal: Congress is still arguing over the president’s warrantless wiretapping program. Lawmakers can’t agree whether phone companies should be immune from lawsuits over the help they gave the National Security Agency.

It’s not the first time corporate America’s worked closely with the government, but it might be the most controversial.

New York Times reporter Eric Lichtblau broke the story. His new book about it is called “Bush’s Law.”

Welcome to the program.

Eric Lichtblau: Thanks for having me.

Ryssdal: In the days after September 11, the government went to these telecommunications companies and said “Listen: we need access to your databases, to your customer records, to the records of traffic coming in and out of your servers.” What did those companies say?

Lichtblau: The government’s had a long-standing relationship with the telecom companies going back to the 1950’s. A lot of people aren’t aware of that, but the private companies are integral players. The government cannot do it themselves. This image of the government spymasters putting the alligator clips on the wires is sort of a myth. They need the partnership of private enterprise to do that.

Ryssdal: But every time the Justice Department goes to them before this program, they have a warrant in hand.

Lichtblau: Yes, that has been the tradition until at least since 1978, when a law was created in the aftermath of Watergate to guard against presidential abuses after the Nixonian period. After 9/11, what President Bush authorized through a special secret presidential order was for the phone companies to participate in a program without going through that FISA court, so the NSA and the top intelligence officials with Dick Cheney himself directing the effort went to the phone companies and said “We have a presidential order in hand” and showed them. “This is directed and blessed at the highest levels. We’re not using a court order, but you are authorized and allowed and, in fact, required to do this.”

Ryssdal: Did they then say “OK, but I feel a little bad about this” or did they say “Come on in!”

Lichtblau: We know about one company so far, which was Quest, a regional carrier out west, that balked at this, that said they were not comfortable with the idea of basically using what appeared to be extra-legal means for such a far-reaching operation and they essentially refused to take part in this.

Ryssdal: Technicians from the National Security Agency go on to corporate premises, on to the switching rooms and hook up their computers and monitoring devices, right?

Lichtblau: Well, it’s a little bit more complicated than that. There are essentially two different phases to this operation and even to this day, we’re not exactly sure how those two phases interact. There is the eavesdropping itself, listening to the call itself. That is, just because of manpower issues, happening in, as best we can tell, a relatively small number of cases. Then you have to look at the much, much broader operation, essentially a data mining operation which looks at transit traffic. They’re not listening to the phone calls, but you have often computers — not human eyes, but computer eyes — tracing phone calls and looking for what intelligence officials regard as suspicious patterns. There are certainly many unanswered questions that we don’t know, but we do have a good sense that the NSA is using complicated algorithms that very few people even claim to understand to try to decipher who might the next call to the next Al-Qaeda operative be.

Ryssdal: You’re still reporting this story, aren’t you, at the Times?

Lichtblau: Oh sure. There are a million questions that we have yet to answer about this.

Ryssdal: And the phone companies themselves, they’re still not talking?

Lichtblau: They’re still not talking. We wish they were and we think they wish they could, but they’ve been essentially gagged in all this. The White House has tried to invoke the state secrets privilege over the entire program, saying any discussion of this entire matter in court could harm national security even today and a judge has already rejected that argument saying “Look, there’s been quite a bit of debate over this in the last two and a half years. How can you claim thais is a state secret?”

Ryssdal: Eric Lichtblau is a reporter for the New York Times. His book is called “Bush’s Law: The Remaking of American Justice.” Eric, thanks for coming in.

Lichtblau: Thanks for having me.

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