Let’s give the government the benefit of the doubt. For a moment, let’s assume what they say is true. That, only foreign communications are being collected and stored in full by the National Security Agency (NSA), and that, the only part of purely domestic communications being collected and stored are their metadata: the number, time, location, and duration of phone calls.
Further, let us assume that the same applies to the so-called PRISM program, including emails, web browsing sessions, search results, chat sessions, and financial transactions. Only foreign communications are captured, and only the metadata of purely domestic ones are taken in.
This of course does not comport with the allegations of numerous whistleblowers, including former AT&T technician Mark Klein, former NSA official William Binney, and now ex-CIA agent Edward Snowden, and others, such as former FBI counterterrorism agent Tim Clemente. Each has stated otherwise.
And each of them has offered varying degrees of evidence that not only is the U.S. collecting domestically, but is also storing that information for later use.
But let’s leave aside the allegations and stick with the government’s explanation. That only foreign communications are subject to surveillance, and only domestic metadata is stored.
First, let us question what the government actually means by “foreign”. Under 50 U.S.C. Section 1881b, the government can target for “electronic surveillance or the acquisition of stored electronic communications or stored electronic data” on U.S. persons on U.S. soil, but only under very limited circumstances upon request to the Foreign Intelligence Surveillance Act (FISA) Court.
To do so, the government must assert that the U.S. person in question is “again reasonably believed to be located outside the United States while an order issued … is in effect.” If a U.S. person targeted for surveillance travels into the country, the surveillance is generally supposed to cease.
That does not cover what the allegations are saying is occurring.
In addition, under 50 U.S.C. Section 1861, the FBI can, with a court order from a U.S. magistrate judge designated by the Chief Justice of the Supreme Court, obtain “tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”
“[F]oreign intelligence information” can necessarily include an “investigation of a United States person” as long as the purpose is “to protect against international terrorism or clandestine intelligence activities.”
The government is then required to show that the “tangible things” to be obtained pertain to “a foreign power or an agent of a foreign power,” “the activities of a suspected agent of a foreign power who is the subject of such authorized investigation,” or “an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.”
Further, under section 2.3 of Executive Order 12333, the intelligence community is “authorized to collect, retain, or disseminate information concerning United States persons.” And, “Collection within the United States of foreign intelligence not otherwise obtainable shall be undertaken by the Federal Bureau of Investigation (FBI) or, when significant foreign intelligence is sought, by other authorized elements of the Intelligence Community.”
These provisions make the FBI not just a law enforcement entity, but a de facto intelligence agency. Bear in mind that the purpose of collecting and retaining these records are not to advance a prosecution per se, but to gather intelligence information.
Significantly, it was the FBI, and not the NSA, that requested the FISA Court to furnish the phone records metadata. And the records were obtained as “tangible things” under 50 USC 1861.
Under the law, the FISA Court can approve such an order if there are “reasonable grounds” that the information is relevant to foreign intelligence gathering. This is less of a standard than probable cause. FBI director Robert Mueller has testified that “these types of records are not covered by the Fourth Amendment,” citing Supreme Court precedents. He is likely referring to Smith v. Maryland (1979) that allowed a caller identification system to be installed on a woman’s phone by police to monitor incoming calls by a threatening man without a warrant.
Here, the government is acknowledging that there is no probable cause in harvesting phone call metadata was on all U.S. persons on U.S. soil.
Thus it is irreconcilable with the Fourth Amendment’s prohibition against unreasonable searches. Yet, the government states domestic communications being pulled into the system are only “inadvertent” and “not wittingly.” And that it is all lawful. Poppycock.
This raises the question of what other domestic surveillance has the FISA Court authorized? Has it issued any orders allowing the collection and retention of the contents of domestic communications upon the request of the NSA or the FBI?
NSA director Gen. Keith Alexander testified on June 12 that “once we identify a person of interest, it goes to the FBI.” If so, then it is the FBI that is accessing these communications. Alexander noted that “if you want to get the content, you’d have to get a court order.” In other words, presumably probable cause is needed to listen to the call. But then, again maybe not. Requests for “tangible things” under 50 U.S.C. Section 1861 only need to be “reasonably relevant,” again, not the same standard as probable cause.
The American people can only hope Alexander means the content of future communications after a valid court order has been issued. Not that those communications have already been recorded by the agency, as has been alleged by the NSA whistleblowers.
But even if it’s only metadata of phone calls, emails, search engine requests, chat sessions, and financial transactions being accessed, it is still the constitutional equivalent of kicking in the doors of U.S. citizens. Either way, rights are being violated.
All of which means we have a problem. Intelligence gathering on U.S. soil is simply not compatible with constitutional protections. You can have one, or the other, but you cannot have both.
While many well-meaning individuals might imagine there is a balance to be struck between security and the Fourth Amendment prohibition against unreasonable searches, based on what we now know, there may be no such balance. And to those who still contend there is, the burden of proof is on them.
Robert Romano is the Senior Editor of Americans for Limited Government.
