FBI checking reporters' phone records

ABC News reports that the FBI has acknowledged that it was seeking reporters' phone records to investigate leaks about secret prisons in Europe and warrantless wiretapping.

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," a senior federal official told ABC News "The Blotter" news blog.

ABC News explained that a National Security Letter (NSL) is "a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government."

On Monday, ABC News reporters Brian Ross and Richard Esposito, who write "The Blotter," reported that a senior federal law enforcement official told ABC News that the FBI is tracking the phone numbers the two reporters call to reach confidential sources. The source told them in person that it was " time for you to get some new cell phones, quick."

Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers. The official who warned ABC News said there was no indication our phones were being tapped so the content of the conversation could be recorded. A pattern of phone calls from a reporter, however, could provide valuable clues for leak investigators.

On Monday night, another federal source told Mr. Ross and Mr. Esposito that it was not that the FBI was "tracking" their calls. but that they were "backtracking." The Associated Press reported early Monday that the FBI said it does not "routinely" track calls made by and to reporters, but that it does check phone records of government employees as part of leak investigations.

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The New York Sun reports that under "long standing" Justice Department provisions, a reporter must be notified within 90 days that his or her records have been obtained, and that subpoenas for the records must not be issued until after the department attempts to negotiate access with the reporter (subscription required).

Spokeswomen for ABC and the Times said their organizations had received no official notification of the effort to seek their phone records. The Washington Post did not respond to a call seeking comment for this article.

The executive director of the Reporters' Committee for Freedom of the Press, Lucy Dalglish, said the government's reported acquisition of journalists' calling records was part of a pattern of intrusions on First Amendment rights by the Bush administration. "I'm ready to throw my arms up in the air," she said. "If there was a subpoena, they are supposed to be notified."

The Sun reports that by using NSLs, the Justice Department can "head off" court challenges that have been initiated by media organizations under the existing provisions.

In his Early Warning blog on national and homeland security for The Washington Post, William Arkin writes that it is " urban legend" that only the news media are making an issue of increased NSA surveillance, and that the majority of Americans "approve" because it protects them from terrorist attacks. He cites a new USA Today-CNN poll shows that a majority of Americans disapprove of the huge database of phone numbers being collected by the NSA, and that two-thirds of Americans also believe that the disclosure of this program shows that there are other, yet-undisclosed programs that are monitoring the general public.

Arkin says that all these activities revolve around two key questions: are these just "ingestion and digestion" designed to catch more terrorists, or are they the "the building blocks of a new seamless surveillance culture?"

The government's position is that if you are "innocent," you have nothing to hide. It is a new version of 'you are either with us or against us.' Massive monitoring is of course meant to find terrorists; I completely believe that this is not some 1960's enemies list politically motivated effort. But these post 9/11 programs signal a new and different problem.

People of Middle Eastern and South Asian descent and Muslims are potential terrorists, machine selected as "of interest." Throw in there callers and travelers to Pakistan and Saudi Arabia, recipients of wire transfers, purchasers of fertilizer, flight school attendees. These are the new guilty until proven innocent. Innocent means of course mostly white, mostly Christian Americans who accept that the government knows best and that the national security state is only after the bad guys and would never apply its new found capacities in any illegitimate way.

In an interview with news site Salon.com, NSA historian Matthew Aid said he believes it is only a matter of time before we discover that cellphone and Internet companies also helped the government spy on Americans.

We should be terrified that Congress has not been doing its job and because all of the checks and balances put in place to prevent this have been deliberately obviated. In order to get this done, the NSA and White House went around all of the checks and balances. I'm convinced that 20 years from now we, as historians, will be looking back at this as one of the darkest eras in American history. And we're just beginning to sort of peel back the first layers of the onion. We're hoping against hope that it's not as bad as I suspect it will be, but reality sets in every time a new article is published and the first thing the Bush administration tries to do is quash the story. It's like the lawsuit brought by [the Electronic Frontier Foundation] against AT&T – the government's first reaction was to try to quash the lawsuit. That ought to be a warning sign that they're on to something.

Mr. Aid said he feels certain that when the complete story of the warrantless wiretapping and the collection of phone records becomes public, it will show that "key oversight functions – those functions that were put in place to protect the rights of Americans – were deliberately circumvented."

Meanwhile, National Journal's CongressDaily reported last week that Russell Tice, a former NSA employee who was also one of the sources who revealed the warrantless wiretapping story to The New York Times, is going to give Senate Armed Services Committee staffers more information Wednesday about the activities of the NSA during the tenure of Gen. Michael Hayden. He says some of the things he will tell the committee include the news that "not only do employees at the agency believe the activities they are being asked to perform are unlawful, but that what has been disclosed so far is only the tip of the iceberg."

[Tice] said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of US citizens while he was there with the knowledge of Hayden. ... "I think the people I talk to next week are going to be shocked when I tell them what I have to tell them. It's pretty hard to believe," Tice said. "I hope that they'll clean up the abuses and have some oversight into these programs, which doesn't exist right now." ...

Tice said his information is different from the Terrorist Surveillance Program that Bush acknowledged in December and from news accounts [last] week that the NSA has been secretly collecting phone call records of millions of Americans. "It's an angle that you haven't heard about yet," he said. ... He would not discuss with a reporter the details of his allegations, saying doing so would compromise classified information and put him at risk of going to jail. He said he "will not confirm or deny" if his allegations involve the illegal use of space systems and satellites.

The Associated Press reported Monday that a chief of the Federal Communications Commission (FCC) said that his agency needs to investigate if phone companies are violating federal communications law by giving phone records of customers to the NSA.

There is no doubt that protecting the security of the American people is our government's No. 1 responsibility," Commissioner Michael J. Copps, a Democrat, said in a statement. "But in a digital age where collecting, distributing and manipulating consumers' personal information is as easy as a click of a button, the privacy of our citizens must still matter."

Also...
• Kadafi killed my child: The US has forgiven him, but we'll never forget who bombed Pan Am Flight 103 (Los Angeles Times)
• EU to offer Iran best civil nuclear technology (Reuters)
• Battle for Turkey's presidency seen as under way a year early (Agence-France Presse)
• BellSouth denies giving records to NSA (CNN)
• Feedback appreciated. E-mail Tom Regan .