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Afterthought: the Poison Tree Triple Play

May 16, 2006

In my previous post, I explained why the “national security logic” demands that the NSA must be listening in without warrants to the content of purely domestic conversations. Having slept on it, I’ve decided my logic wasn’t airtight.

As we learned Monday, the feds have also been collecting the phone records of journalists – but they’ve been doing it perfectly legally. They just fork over an NSL, a National Security Letter, a dodge made legal by the USAPATRIOT Act. Certain agencies, such as the FBI, may issue NSLs and compel the production of private information, without a warrant, and it is illegal for the provider to inform anyone of the search. (In theory, these letters were to be used only to track down potential terrorists, but the language of the Act is conveniently fuzzy, and a journalist is now the same thing as a terrorist in the eyes of this particular law.)

Here, then, is the value of the phone records the NSA collects. Once they’ve located a “pattern”, they know which phones they want to bug for content. They can’t go to the FISA court with that, because they’d have to admit to breaking the law, and they’d find their spooky behinds tossed out on the pavement.

But what they can do is go to the FBI and say, “Here are some phone numbers of interest.” The FBI can then present NSLs to the phone companies, demanding phone records for those numbers. Lo and behold, the parties in question have been talking to Suspicious Characters. Now, the Hooverites trot down to the FISA court. Fortunately, our crack Tinsel Wing staff has the courtroom bugged; transcript follows.

Hooverite: “We’d like to listen in on the conversations of this individual, who is talking to some potential Bad Actors. These phone records show probable cause.”

FISA judge: “Did you get these phone records from the illegal NSA database which we, of course, know nothing about and have never heard of?”

Hooverite: “Your honor, we cannot tell a lie, we got these records from a National Security Letter, in accordance with USASNOOPONPATRIOTSACT, section this, part that, and here’s the paperwork.”

FJ: “What led you to issue this particular NSL?”

Hooverite: “Well, your honor, sometimes we just get hunches. This one panned out.”

FJ: “Sounds aboveboard to me. Where do I sign?”

It’s a classic Tinker to Evers to Chance to Tinker to Chance to that little celebrated catcher Bfstplk. The phone giant at SS passes records to NSA at 2nd: one hundred percent illegal. The NSA passes the resulting tip to the FBI at 1st: one hundred percent illegal. The FBI launders the tip by going back to the shortstop, who pass the ball, now clean as a whistle, to the FBI, who throws it home to the FISA judge. A triple play, and the stands go wild.

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