The Ashford Zone Blog

"The technical legal term for that, I believe, is poppycock."

— Harvard law professor Laurence Tribe, in a letter to Rep. John Conyers (D-MI), on the Bush administration’s claim that the U.S. Constitution authorizes the domestic eavesdropping program.

The NSA wiretapping whistleblower (and presumptive subject of the DOJ investigation about the leak) has come forward.  Russell Tice has worked within the bowels of the NSA, and he has a lot to say:

"I specialized in what’s called special access programs," Tice said of his job. "We called them ‘black world’ programs and operations."

But now, Tice tells ABC News that some of those secret "black world" operations run by the NSA were operated in ways that he believes violated the law. He is prepared to tell Congress all he knows about the alleged wrongdoing in these programs run by the Defense Department and the NSA in the post-9/11 efforts to go after terrorists.

"The mentality was we need to get these guys, and we’re going to do whatever it takes to get them," he said.

Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.

"If you picked the word ‘jihad’ out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."

According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect’s phone number to hundreds or even thousands more.

President Bush has admitted that he gave orders that allowed the NSA to eavesdrop on a small number of Americans without the usual requisite warrants.

But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.

"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

I’m going to withhold judgment, but part of what he describes does not trouble me.  The "data-mining" aspect, it seems to me on first blush, does not fall within the scope of targetted surveillance, which is essentially what our laws encompass.  This may be a situation where the technology is ahead of the statutory law.  However, the data-mining technique is not ahead of overarching Constitution principles, particularly in the Fourth Amendment. 

It seems to me that once a conversation is "flagged", and it is, in Tice’s words, "pull[ed] out of the system for processing", the government has a clear duty to seek a warrant, even a post-fact one.

Anyway, there will be more to come on the Tice angle, I’m sure.  Watch for the cries of "traitor" to come from the right.