Spying on your phone records: Is that legal?

I recommend this Keith Olbermann interview with Professor Jonthan Turley. The topic is the NSA's program to collect all domestic phone records, and the big telephone carriers' compliance. Turley believes that, according to the Communications Act of 1934, phone companies can not give out information on customer calling habits: "I've spent a day now looking for the possible authority that they would use for this operation and I've come up with nothing."

I spent roughly ten minutes, and I found a provision of the Communications Act of 1934 (as amended) which Bush might be able to use as an overall get-out-of-jail free card. The scope of the law is frightening. Subchapter VI, section 606 of the Act (all of those sixes may give some people the willies) grants the President broad wartime powers over communications. Paragraph c refers to radio and wireless communications...

Upon proclamation by the President that there exists war or a threat of war, or a state of public peril or disaster or other national emergency, or in order to preserve the neutrality of the United States, the President, if he deems it necessary in the interest of national security or defense, may suspend or amend, for such time as he may see fit, the rules and regulations applicable to any or all stations or devices capable of emitting electromagnetic radiations within the jurisdiction of the United States as prescribed by the Commission...

Paragraph d offers the same broad authority over wired communications. I assume that W (or his lawyers) can make the argument that these provisions apply to telephone communications. In the satellite age, everything gets translated into "electromagnetic radiations."

So far, the President has not invoked or even hinted at this provision. Doing so would trigger debate over the question of whether we really are at war. Technically, we are not. But look at the wording: "threat of war"..."state of public peril or disaster or other national emergency."

The legislators who wrote these words were probably thinking of a nuclear strike by another country. They probably never suspected that a president might use a single terror strike to justify a perpetual state of national "peril." Bush has done just that -- yet he cannot so state in explicit terms without "outing" himself as a dictator.