I guess all the defenders of the NSA PRISM and phone-record surveillance programs will now try to tell us that this latest revelation, that the NSA listens in on our phone calls and monitors emails, text messages, and IM chats — all without a warrant — is the price we pay for preventing terrorist attacks.
Not only don’t they need a warrant, says the DoJ, but low-level analysts can make the decision to listen to our phone calls for any reason they want.
The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.
Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”
If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney and congressman who serves on the House Judiciary committee.
Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.
Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler’s disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.
The disclosure appears to confirm some of the allegations made by Edward Snowden, a former NSA infrastructure analyst who leaked classified documents to the Guardian. Snowden said in a video interview that, while not all NSA analysts had this ability, he could from Hawaii “wiretap anyone from you or your accountant to a federal judge to even the president.”
There are serious “constitutional problems” with this approach, said Kurt Opsahl, a senior staff attorney at the Electronic Frontier Foundation who has litigated warrantless wiretapping cases. “It epitomizes the problem of secret laws.”
The NSA yesterday declined to comment to CNET. A representative said Nadler was not immediately available. (This is unrelated to last week’s disclosure that the NSA is currently collecting records of the metadata of all domestic Verizon calls, but not the actual contents of the conversations.)
The NSA has between 500,000 and one million numbers on their target list — perhaps more. All electronic communications belonging to these people are recorded.
This isn’t “monitoring.” This isn’t “scanning.” This is eavesdropping — exactly what President Obama denied when he said “nobody is listening to your phone calls.” Oh, yes they are, Barry, and lying about it is about the most egregious breaking of trust with the American people that has occurred in your administration.
With such a massive list of targeted people, and low-level analysts able to make the decision to listen in without a warrant, how easy would it be for a request from a partisan operative to eavesdrop on the opposition to be slotted into the daily routine? Who’s keeping track of the analysts to make sure they are only listening in to targeted phone calls?
The potential for immediate abuse of this program is immense. You don’t have to be wearing a tin foil hat to imagine the worst. If the appetite to make a mockery of our constitutional protections is there, the NSA appears to have a program to sate it.
And it is equally clear that the entire upperlevels of American intelligence have been lying to Congress about how this program works. The NSA doesn’t need a FISA warrant to access the contents of domestic phone calls. That’s the bottom line, despite protestations to the contrary from the spooks.
AT&T and other telecommunications companies that allow the NSA to tap into their fiber links receive absolute immunity from civil liability or criminal prosecution, thanks to a law that Congress enacted in 2008 and renewed in 2012. It’s a series of amendments to the Foreign Intelligence Surveillance Act, also known as the FISA Amendments Act.
That law says surveillance may be authorized by the attorney general and director of national intelligence without prior approval by the secret Foreign Intelligence Surveillance Court, as long as minimization requirements and general procedures blessed by the court are followed.
A requirement of the 2008 law is that the NSA “may not intentionally target any person known at the time of acquisition to be located in the United States.” A possible interpretation of that language, some legal experts said, is that the agency may vacuum up everything it can domestically — on the theory that indiscriminate data acquisition was not intended to “target” a specific American citizen.
The National Security State, the Surveillance State, the Military Industrial Complex — whatever you want to call it, it’s out of control and has become a serious threat to American liberty. Can it be tamed? The Church Committee in the 1970s uncovered serious abuses by the CIA, and their recommendations nearly destroyed the agency. Realizing the necessity for intelligence gathering in a post-9/11 world, there has to be a way to allow the CIA, NSA, DIA, and other intelligence agencies to do their jobs without threatening our privacy or 4th Amendment rights. The almost magical technology that allows our government to snoop can be employed to protect our rights as well. All that’s lacking is the effort and imagination to do so.
Note: Read Matt Vespa’s update to this story. Rep. Nadler apparently misspoke.
(Also read Ed Driscoll: “Warrants? The NSA Don’t Need No Steeenking Warrants!”)