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Last Saturday, we had a big row, about this CNET article, and what Rep. Jerry Nadler had said:

The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.

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 who serves on the House Judiciary committee.

NSA spying flap extends to contents of U.S. phone calls,  Declan McCullagh, CNET

Two main points in what Nadler said: 1) The NSA can listen in on domestic phone calls without a warrant. 2) Decisions to listen in can be made by analysts, without any higher-level NSA approval, much less an application to FISA.

Yesterday, the Guardian released 2009-vintage procedures used in content collection, including domestic phone calls.

The procedures show that Rep. Nadler was right. The understanding he got from the classified briefing was an accurate description of the program.

  1. "The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls":
    judges have signed off on broad orders which allow the NSA to make use of information "inadvertently" collected from domestic US communications without a warrant.
    The documents show that even under authorities governing the collection of foreign intelligence from foreign targets, US communications can still be collected, retained and used.
  2. "[S]imply based on an analyst deciding that" and "an analyst's decision is sufficient, without any other legal authorization required":
    The documents also show that discretion as to who is actually targeted under the NSA's foreign surveillance powers lies directly with its own analysts, without recourse to courts or superiors – though a percentage of targeting decisions are reviewed by internal audit teams on a regular basis.

Rep. Nadler had gotten, in a classified briefing, an accurate description of the program. Then, in a public hearing, being careful about classified information, Nadler asked the FBI Director about what he had been told. The FBI Director was, politely said, "incorrect," in denying that the program works how the program works. Moreover, the FBI Director knew, at the time of his incorrectness, that documents were likely out there ready to expose his, politely said, baldfaced fucking lie.

The CNET article, in picking up on the conversation, was right.

Rep. Nadler's disclosure that NSA analysts can listen to calls without court orders came during a House Judiciary hearing on Thursday that included FBI director Robert Mueller as a witness.

Mueller initially sought to downplay concerns about NSA surveillance by claiming that, to listen to a phone call, the government would need to seek "a special, a particularized order from the FISA court directed at that particular phone of that particular individual."

Is information about that procedure "classified in any way?" Nadler asked.

"I don't think so," Mueller replied.

"Then I can say the following," Nadler said. "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."

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