Mining Their Own Business

Yesterday, in response to USA Today's story about the NSA's phone record collection, President Bush said: "We're not mining or trolling through the personal lives of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates."

Depending on how one defines mining, trolling, and personal lives, that may or may not be true. By USA Today's account, the NSA "is using the data to analyze calling patterns in an effort to detect terrorist activity," which sounds like what is usually described as "data mining," a la John Poindexter's Total Information Awareness project. But at the very least Bush seems to be promising that the government isn't using the database to track phone calls to pot dealers, bookies, or call girl services. Even if he doesn't consider people who make such calls "innocent Americans," the terrorist nexus would be hard to show.

Yet USA Today reported that "NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database." Bush's assurance could be reconciled with the paper's account if the database is currently being used to track terrorists but might at some point be used for other purposes. Likewise, Bush may have been completely truthful in saying "the government does not listen to domestic phone calls without court approval." But given his justification for the NSA's warrantless surveillance of international communications involving people on U.S. soil, that could change any day. Last month, when asked if the president has the power to authorize warrantless surveillance of purely domestic calls and e-mail messages, Attorney General Alberto Gonzales said, "I'm not going to rule it out."

So one problem with polls indicating that most Americans are perfectly OK with all this is that they should be asking not only how people feel about what the adminstration has done so far (or what it is has admitted to doing so far) but how they feel about what it or future administrations could do based on Bush's sweeping assertion of unchecked executive power. If the government had sought court approval or statutory authority for the sort of (presumably automated) data analysis the NSA is doing, it would not be such a big deal. If the executive branch could be trusted to use the data only for the limited purposes suggested by Bush's comments, it would not be such a big deal. But since neither is the case, it is a big deal.

I'd like to see a poll that asks, "Do you think the president should have the power to do whatever he wants to fight terrorism, no matter what Congress or the courts say?" Or maybe I wouldn't. I'm a little worried about what the answer would be.