One major telecommunications company declined to participate in the program: Qwest.
According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.
Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.
The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.
The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.
Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.
In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.
Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.
The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.
In June 2002, Nacchio resigned amid allegations that he had misled investors about Qwest's financial health. But Qwest's legal questions about the NSA request remained.
Unable to reach agreement, Nacchio's successor, Richard Notebaert, finally pulled the plug on the NSA talks in late 2004, the sources said.
All I can say is, at least someone is apparently resisting the administration's seemingly bottomless claims of executive power. Qwest is now improbably at the vanguard of protecting civil liberties, ahead of the other two branches of the federal government. The administration may decide to punish Qwest, as the story suggests, but perhaps the market for telecommunications services can reward the company.
For the time being, I'll leave in Orin's very capable hands an analysis of whether this particular domestic surveillance program is legal. We have only sketchy allegations from unnamed sources at this point, so it it will be very hard to assess the legality of the program, if it exists at all. For reasons I hope to give in the not-too-distant future, I think the NSA program revealed last December is unconstitutional. I'm less certain about the legal/constitutional standing of this program, since it doesn't appear to involve warrantless eavesdropping on domestic calls.
I would not be surprised if the broad outlines of the USA Today story are true. Nor would I be surprised to learn that there are other such secret "programs" authorized by this administration, including some not even revealed on a confidential basis to members of Congress.
Legal or not, based on what we know now the program seems very hard to justify as a security measure in light of its actual and potential damage to Americans' privacy. Perhaps the administration can offer a defense of the program that makes sense, but so far it feels no need to explain itself to anybody. In the balance between civil liberties and security — which I fully agree has to be adjusted toward the latter in a post-9/11 world — the administration has continually opted for overkill. There is such a thing as security overkill, just as there is such a thing as preserving trivial liberties at the expense of protecting lives. If collecting data on every single call made by every single person in the U.S. every single day for a dubious enhancement of security does not count as overkill, well, the administration will soon show us what does.