It's a pity that so many senators skipped the NSA's classified briefing on its secret spying program, because if they'd attended, they'd have heard something shocking: the NSA can and does access the content of emails and phone calls of Americans on US soil without a warrant. It's an important insight into the President's secret interpretation of FISA, one of America's most notorious spying laws.
Update: Rep. Nadler has denied that this is what he meant: “I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant.”
However, he does not deny that the NSA can access the contents of the call, not ruling out the possibility of the NSA using contractors, or speech-to-text, or some other indirect method, to accomplish "listening in" by other means.
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 NSA is supposed to only spy on us dirty foreigners. As sketchy as it is to divide the world into the spied-upon and the un-spied-upon, it is nevertheless the law, and should be comforting to those the latter category. This revelation confirms that the Obama administration has doubled down on GW Bush's project of lawless, authoritarian surveillance, treating the Constitution and Congress's laws as mere formalities. So much for "the most transparent administration in history."
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