Obama Responds on NSA Spying (And My Response to President Obama)

President Obama was recently interviewed by Charlie Rose, and Buzzfeed has publicized some snippets regarding the NSA spying program. I’d like to highlight a few points, and let the reader decide where the truth lies.

First, from President Obama:

What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not. They cannot and have not, by law and by rule, and unless they — and usually it wouldn’t be “they,” it’d be the FBI — go to a court, and obtain a warrant, and seek probable cause, the same way it’s always been…

That would be contrary to what Democratic Representative Jerrold Nadler and Democratic Senator Dianne Feinstein recently stated. Are they misinformed, or is President Obama not being forthcoming?

So, what happens is that the FBI — if, in fact, it now wants to get content; if, in fact, it wants to start tapping that phone — it’s got to go to the FISA court with probable cause and ask for a warrant.

According to the book Taking Liberties by the ACLU’s Susan Herman, to receive a FISA warrant, the government has to show probable cause that the target of the search is a foreign agent, and a “significant purpose” of the investigation is to obtain foreign intelligence. This is not the equivalent a search allowed via the 4th Amendment, which requires probable cause that a crime is committed by the person(s) listed on the warrant.

It is transparent. That’s why we set up the FISA court…

FISA judges are appointed by the Chief Justice, and not through a confirmation hearing done in public. The public cannot attend a FISA court proceeding. Records of court proceedings are not made public. FISA searches allow the government to never notify their target of the search being conducted. Does this sound like transparency?

**UPDATE 6/19/13: Whistleblower Edward Snowden did an online chat with The Guardian. Some key quotes from Mr. Snowden, some of which contradict what President Obama said in his interview with Charlie Rose:

I did not reveal any US operations against legitimate military targets. I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. These nakedly, aggressively criminal acts are wrong no matter the target. Not only that, when NSA makes a technical mistake during an exploitation operation, critical systems crash. Congress hasn’t declared war on the countries – the majority of them are our allies – but without asking for public permission, NSA is running network operations against them that affect millions of innocent people. And for what? So we can have secret access to a computer in a country we’re not even fighting?

Unfortunately, shortly after assuming power, he [President Obama] closed the door on investigating systemic violations of law, deepened and expanded several abusive programs, and refused to spend the political capital to end the kind of human rights violations like we see in Guantanamo, where men still sit without charge.

The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as “incidental” collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of “warranted” intercept, it’s important to understand the intelligence community doesn’t always deal with what you would consider a “real” warrant like a Police department would have to, the “warrant” is more of a templated form they fill out and send to a reliable judge with a rubber stamp.

The consent of the governed is not consent if it is not informed.

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