Nadler Backtracks: NSA Does Need Court Order

It turns out that the surveillance of Americans may be even more dangerous and unsupervised than had been heretofore acknowledged- but the powers that be aren’t willing to admit it. The National Security Agency (NSA) admitted in a secret briefing that its analysts can decide to listen to Americans’ phone calls without legal authorization. 

Rep. Jerrold Nadler, a New York Democrat, revealed that during the briefing to members of Congress, the NSA allowed that phone calls could be monitored “simply based on an analyst deciding that.” This means low-ranking analysts may be listening to Americans willy-nilly.

Yet Nadler has now changed his tune. After an exchange with FBI director Robert Mueller, who denied that the NSA had free rein without the permission of the court, Nadler intoned, “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.”

During a House Judiciary hearing, FBI director Robert Mueller had claimed that the government would need “a special, a particularized order from the FISA court directed at that particular phone of that particular individual” to monitor a phone call. Nadler had asked, “Is information about that procedure “classified in any way?” Mueller answered, “I don’t think so.”

Nadlerhad leaped on that denial, saying, “Then I can say the following. We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that…In other words, what you just said is incorrect. So there’s a conflict.”

The laws at issue applying to phone calls also apply to e-mail messages, text messages, and instant messages, making the entire filed of communications vulnerable to the analysts at the NSA. Edward Snowden, the former NSA analyst who leaked classified information, had alleged that from Hawaii he “wiretap anyone from you or your accountant to a federal judge to even the president.”

The public has already learned that the NSA had the capability to monitor all lines of communications. Wired reported last year that the NSA has established “listening posts” which enable them to collect information, including the content of the calls, from billions of phone calls “whether they originate within the country or overseas.”

William Binney, who helped to modernize the NSA’s worldwide eavesdropping network, admitted that at least 500,000 to 1 million people are being monitored by the NSA: “They look through these phone numbers and they target those and that’s what they record.”

An AT&T technician, Mark Klein, explained in 2006 that he saw information “diverted” through a “splitter cabinet” to secure room 641A in one of the company’s San Francisco facilities, which was open only to NSA-cleared technicians. AT&T and other telecommunications companies that permit their lines to be tapped are clear from being tried in court. Congress passed a series of amendments to FISA in 2008 that left them free from prosecution. The amendments state that the attorney general and director of national intelligence can authorize surveillance without the Foreign Intelligence Surveillance Court approval.

But one proviso of the law was that the NSA could not “intentionally target any person known at the time of acquisition to be located in the United States.” The NSA apparently circumvented that by assuming that by sweeping up all information domestically, the gathering of information was not intended to “target” a specific American.

Former FBI counterterrorism agent Tim Clemente has said that in national security investigations, the FBI can monitor a previously made telephone call. He said, apparently referencing the NSA, “All of that stuff is being captured as we speak whether we know it or like it or not,” adding later, “thanks to the intelligence community, there’s a way to look at digital communications in the past.”

NSA Director Keith Alexander has protested his agency’s innocence, stating, “They do this lawfully. They take compliance oversight, protecting civil liberties and privacy and the security of this nation to their heart every day.”