Outside the Beltway has a good post on today’s NSA Data Mining story, and even better discussion in the comments.

The article in USA Today by Leslie Cauley introduces this controversy with the following lead:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

This one’s worth a careful read. Note the exposure of several details that most certainly are classified, the disclosure of which surely present a significant threat to National Security, as these details help our enemies adapt to avoid our Intelligence efforts.

Tom Maguire at Just One Minute has concerns that this may not be legal, and makes the following excellent points:

If I had been forced to guess, I would have said that this is not legal, since (if I am recalling correctly the debate about the NSA warrantless program), even a pen trace that records only phone number called and not the content of each call requires a warrant. I have no doubt we will see commentary about the legal aspects soon enough.

As to the timing of this leak, can it be a coincidence that Gen. Hayden, who oversaw this while at the NSA, is meant to face Senate confirmation for his appointment to head the CIA?

(snip)

Well - when Bush denies that the government is trolling through my personal life, does he consider my calling history to be personal? And for that matter, do I? Aren't these records sold to marketing companies, in some aggregated fashion?

Dale Carpenter at The Volokh Conspiracy headlines his analysis with “I’m Switching to Qwest,” referring to the lone Telecomm company holdout on giving NSA call detail records (CDR). Dale helpfully links to his fellow blogger Orin Kerr, who has a good review of the possible statutory and obligatory dismissal of potential 4^th Amendment arguments against the program.

Short answer? Program may violate statutory restrictions, but may ultimately depend on how much authority is yielded to the President, either on the basis of his constitutional wartime powers, or specific provisions of the Patriot Act.

Other excellent commentary:

Stop The ACLU

RightWinged.com

Michelle Malkin

The Unalienable Right

Also, see excellent background piece from Group INTEL.

This is a highly complex controversy, with many debatable aspects. Thus, be completely assured that the President’s enemies, and those who dismiss or underestimate the threat of global, radical Islamic terrorism, to have a field day.

(Sigh.) While fighting this war was never going to be easy, it does amaze the many ways that the fight is made ever more difficult. Perhaps we, as a pluralistic, open, and free society, with a penchant for holding our ideals in higher priority than other necessities, is doomed to fall against enemies, foreign and domestic, who lack both our ideals, and any sense of humanity.

(Help from Memeorandum)