Media Reports Gonzales’ Misleading Legal Analysis on NSA Program, Ignores All Opposing Views

Attorney General Alberto Gonzales won’t confirm that the federal government collected the phone records of millions of Americans, as reported on May 11 in USA Today. But yesterday, Gonzales claimed that doing so was perfectly legal. From the Washington Post:

Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records…Gonzales told reporters that, under the Smith v. Maryland ruling, “those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records.”

This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.