"What I can say unequivocally is that if you are a US person, the NSA cannot listen to your telephone calls ... by law and by rule, and unless they ... go to a court, and obtain a warrant, and seek probable cause, the same way it's always been, the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause."
The NSA's media defenders have similarly stressed that the NSA's eavesdropping and internet snooping requires warrants when it involves Americans. The Washington Post's Charles Lane told his readers: "the government needs a court-issued warrant, based on probable cause, to listen in on phone calls." The Post's David Ignatius told Post readers that NSA internet surveillance "is overseen by judges who sit on the Foreign Intelligence Surveillance Court" and is "lawful and controlled." Tom Friedman told New York Times readers that before NSA analysts can invade the content of calls and emails, they "have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress."
This has become the most common theme for those defending NSA surveillance. But these claims are highly misleading, and in some cases outright false.
Top secret documents obtained by the Guardian illustrate what the Fisa court actually does -- and does not do -- when purporting to engage in "oversight" over the NSA's domestic spying. That process lacks many of the safeguards that Obama, the House GOP, and various media defenders of the NSA are trying to lead the public to believe exist.
No individualized warrants required under 2008 Fisa law Many of the reasons these claims are so misleading is demonstrated by the law itself. When the original Fisa law was enacted in 1978, its primary purpose was to ensure that the US government would be barred from ever monitoring the electronic communications of Americans without first obtaining an individualized warrant from the Fisa court, which required evidence showing "probable cause" that the person to be surveilled was an agent of a foreign power or terrorist organization.
That was the law which George Bush, in late 2001, violated, when he secretly authorized eavesdropping on the international calls of Americans without any warrants from that court. Rather than act to punish Bush for those actions, the Congress, on a bipartisan basis in 2008, enacted a new, highly diluted Fisa law -- the Fisa Amendments Act of 2008 (FAA) -- that legalized much of the Bush warrantless NSA program.
Under the FAA, which was just renewed last December for another five years, no warrants are needed for the NSA to eavesdrop on a wide array of calls, emails and online chats involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person or the call is entirely domestic. But even under the law, no individualized warrant is needed to listen in on the calls or read the emails of Americans when they communicate with a foreign national whom the NSA has targeted for surveillance.
As a result, under the FAA, the NSA frequently eavesdrops on Americans' calls and reads their emails without any individualized warrants -- exactly that which NSA defenders, including Obama, are trying to make Americans believe does not take place. As Yale Law professor Jack Balkin explained back in 2009:
"The Fisa Amendments Act of 2008, effectively gives the President -- now President Obama -- the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New Fisa no longer requires individualized targets in all surveillance programs. Some programs may be 'vacuum cleaner' programs that listen to a great many different calls (and read a great many e-mails) with any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. ...
"New Fisa authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States) -- which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda."
As the FAA was being enacted in mid-2008, Professor Balkin explained that "Congress is now giving the President the authority to do much of what he was probably doing (illegally) before."
The ACLU's Deputy Legal Director, Jameel Jaffer, told me this week by email:
"On its face, the 2008 law gives the government authority to engage in surveillance directed at people outside the United States. In the course of conducting that surveillance, though, the government inevitably sweeps up the communications of many Americans. The government often says that this surveillance of Americans' communications is 'incidental,' which makes it sound like the NSA's surveillance of Americans' phone calls and emails is inadvertent and, even from the government's perspective, regrettable.
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