“Consent” appears to be the right wing’s favorite defense for the apparent decision by major phone companies to hand over millions of customers’ calling records to the National Security Agency. As reported in the Washington Post, “the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers ‘have consented to that’ when they establish accounts.”

ThinkProgress has been compiling legal answers to all the questions about telco liability, here and here. Here’s why the consent argument won’t work:

1. The telco language terms of service provide no basis for “consent.” The terms of service of AT&T, BellSouth, and Verizon highlight that they will turn over records in response to court orders or subpoenas, which did not exist, according to USA Today. Verizon also mentions “exigent circumstances” – a very slim reed on which to conclude that customers gave actual consent to having all their phone calls disclosed to the government.

2. Consent is for a specific action, not a blanket permission. As explained by former prosecutor and law professor Orin Kerr, cases under the wiretap laws require that “the user actually agreed to the action, either explicitly or implicitly based on the user’s decision to proceed in light of actual notice.” You give consent for a call when you have actual notice. That’s why we always hear that “this call may be monitored for quality assurance purposes.”

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In January, NBC reporter Andrea Mitchell asked James Risen, the New York Times author who disclosed the NSA wiretapping program, whether CNN’s Christiane Amanpour had been eavesdropped upon.

MITCHELL: Do you have any information about reporters being swept up in this net?
RISEN: No, I don’t. It’s not clear to me. That’s one of the questions we’ll have to look into [in] the future. Were there abuses of this program or not? I don’t know the answer to that.
MITCHELL: You don’t have any information, for instance, that a very prominent journalist, Christiane Amanpour, might have been eavesdropped upon?
RISEN: No, no I hadn’t heard that.

The question-and-answers were soon deleted from NBC’s website, but NBC did confirm that it was conducting an inquiry into whether reporters had been targeted. CNN’s David Ensor received an official response from the NSA:

I’m told considerable manhours today went into making sure the answer to CNN would be accurate. A senior US intelligence official tells use that our colleague Christiane Amanpour has never been targeted by the National Security Agency, and nor has any other CNN journalist. Now, the NSA as you know is the eavesdropping intelligence agency, the US government’s big ear, and from time to time, the official says, wiretaps overseas or other intercepts turn out to include Americans, or what they call ‘US persons’, which includes people who works for US companies, it does so inadvertently.

The response Ensor received from the NSA related specifically to eavesdropping — i.e., the monitoring of the contents of a phone call. According to a report today from ABC’s Brian Ross the government is tracking reporters’ phone records — but not the contents of their phone calls — in an effort to root out confidential sources. If the ABC story is true, it raises the question of whether Amanpour’s — or any other journalist’s — phone records were monitored by the government.

During a prime-time address tonight, President Bush will “outline immigration reform proposals,” including a controversial plan to deploy several thousand National Guard troops to the US/Mexican border.

Appearing on ABC’s Good Morning America a few minutes ago, White House Counselor Dan Bartlett was asked about concerns that the National Guard was under strain:

GIBSON: So you reject the argument that some Republicans made yesterday that the Guard is already stretched too thin?

BARTLETT: Well, absolutely.

Here are the facts about the state of the National Guard:

- 20 percent of the approximately 130,000 U.S. troops deployed in Iraq are members of the Guard and Reserve.

- 352 National Guard soldiers have died in Iraq.

- The National Guard Bureau estimated that “nondeployed units had only about 34 percent of their essential warfighting equipment as of July 2005.”

- The Army National Guard “reported that it had less than 5 percent of the required amount of more than…220 critical items.”

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