June18, 2013
The Guardian

FISA Court Oversight: A Look Inside a Secret and Empty Process

Obama and other NSA defenders insist there are robust limitations on surveillance but the documents show otherwise

by Glenn Greenwald

Since we began began publishing stories about the NSA's massive domestic spying apparatus, various NSA defenders - beginning with President Obama - have sought to assure the public that this is all done under robust judicial oversight. "When it comes to telephone calls, nobody is listening to your telephone calls," he proclaimed on June 7 when responding to our story about the bulk collection of telephone records, adding that the program is "fully overseen" by "the Fisa court, a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them". Obama told Charlie Rose last night:

"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 GOP chairman of the House Intelligence Committee, Mike Rogers, told CNN that the NSA "is not listening to Americans' phone calls. If it did, it is illegal. It is breaking the law." Talking points issued by the House GOP in defense of the NSA claimed that surveillance law only "allows the Government to acquire foreign intelligence information concerning non-U.S.-persons (foreign, non-Americans) located outside the United States."

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 claim 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. . . .

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ANY PERSON IN GOVERNMENT SERVICE SHOULD:
I. Put loyalty to the highest moral principles above loyalty to persons, party, or government department. . . ., "Code of Ethics for Government Service," 86th Congress, July 11, 1958

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[I had thought it was as clear as law can be that any person who has committed a political crime should be exempted from mandatory extradition even if a treaty existed imposed a duty on its parties to hand over individuals accused of serious criminal activity. To be sure, from the perspective of the United States government, Snowden's exposure of the PRISM surveillance program was a flagrant violation of the Espionage Act. But it was also as clearly a political crime as almost any undertaking can be. There was no violence involved or threatened, and no person can be harmed by the disclosures.--Richard Falk, "What am I missing in the Snowden affair?," aljazeera.com, July 10, 2013]

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[". . . all an analyst has to do is enter an email address or an IP address, and it does two things. It searches that database and lets them listen to the calls or read the emails of everything that the NSA has stored, or look at the browsing histories or Google search terms that you've entered, and it also alerts them to any further activity that people connected to that email address or that IP address do in the future."--Kari Rea, "Glenn Greenwald: Low-Level NSA Analysts Have 'Powerful and Invasive' Search Tool," guardian.co.uk, July 31, 2013]

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[Seven years after former National Security Agency contractor Edward Snowden blew the whistle on the mass surveillance of Americans' telephone records, an appeals court has found the program was unlawful--Raphael Satter, "U.S. court - Mass surveillance program exposed by Snowden was illegal - and that the U.S. intelligence leaders who publicly defended it were not telling the truth.," reuters.com, September, 2020]

[Police have used "Fog Reveal" to search hundreds of billions of records from 250 million mobile devices, and harnessed the data to create location analyses known among law enforcement as "patterns of life,"" according to thousands of pages of records about the company.--Garance Burke and Jason Dearon, "Tech tool offers police 'mass surveillance on a budget'," reuters.com, September 1, 2022]