Eric Lichtblau and James Risen, who first broke the secret surveillance scandal, have an article in today's New York Times about how NSA's spying on domestic e-mail is far more extensive (in the millions) than previously thought, even under the new, relaxed FISA law. http://www.nytimes.com/... This is especially disturbing because the new FISA law enacted last year gave the NSA greater leeway to collect our private communications as long as it was only the "incidental byproduct" of investigating people "reasonably believed" to be overseas. And the dragnet involves not only significant collection, but also examination of e-mail. But who cares? Attorney General just said the domestic spying program was "unwise," but not illegal.
I am at a loss for words. . .
Personally, I believe that the old Foreign Intelligence Surveillance Act (FISA) was broad enough. Obviously, Congress, which then included President Obama, did not.
Now we learn (and no one should be surprised here) that, despite expansions via the Patriot Act and the new FISA law, recent intercepts of the private telephone calls and e-mails messages of Americans are broader than previously acknowledged.
When I say broader, I'm not referring to a few technical glitches. Three intelligence officials indicated that the number of improperly collected communications could number in the millions. Lichtblau and Risen describe a series of interviews with a former NSA analyst who
described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans' e-mail messages without court warrants.
The Justice Department and NSA are arguing that the overcollection was inadvertent--due to difficulties in differentiating e-mail messages by Americans and foreigners.
Because the new FISA law takes into account intent in its "reasonably believe[s]" language, then the scale of domestic e-mail collection does not matter in terms of liability. The tolerable limits for "incidental collection" don't matter. The numerosity of mistakes doesn't matter.
As long as the NSA "reasonably believes" that the incidental collestion is a byproduct of investigating people overseas, it's ok.
I fully realize that electronic eavesdropping is one of numerous national security controversies that Obama inherited from the Bush administration. Please urge Congress to reconsider this matter. You can start by contacting Representative Rush Holt (D-NJ), Chairman of the House Select Intelligence Oversight Panel, who is leading the charge investigating this issue: 202-225-5801 or 1-87-RUSH-HOLT (toll-free).
UPDATE from Senate Judiciary Committee hearing on "Oversight of the U.S. Department of Justice":
Senator Leahy just questioned Attorney General Eric Holder about this.
Holder: I have not had a chance to review with detail the article in the New York Times today.
Leahy: I wish you would. If we're going to re-authorize, we've got to know what the Department wants. . .I hope you will look into it and redouble your efforts to work on a media shield bill.
Holder: They [the provisions] don't expire until December.
Feinstein: We will hold another hearing and go into it again. I'm surprised by this article. Flagrant attempts to conduct content is not true.
UPDATE II
Feingold: Was the spying program [as it existed before the new, more permissive FISA law] illegal?
Holder: It was unwise. [Feingold pushes Holder to characterize it as "illegal," which Holder did in June 2008 testimony, but Holder will not use the word "illegal" now.]