On Sunday’s Face the Nation, Sen. Rand Paul was asked about President Trump’s accusation that President Obama ordered the NSA to wiretap his calls. The Kentucky senator expressed skepticism about the mechanics of Trump’s specific charge, saying: “I doubt that Trump was a target directly of any kind of eavesdropping.” But he then made a broader and more crucial point about how the U.S. government spies on Americans’ communications — a point that is deliberately obscured and concealed by U.S. government defenders.
Paul explained how the NSA routinely and deliberately spies on Americans’ communications — listens to their calls and reads their emails — without a judicial warrant of any kind:
The way it works is, the FISA court, through Section 702, wiretaps foreigners and then [NSA] listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls.
And so they did this to President Obama. They — 1,227 times eavesdrops on President Obama’s phone calls. Then they mask him. But here is the problem. And General Hayden said this the other day. He said even low-level employees can unmask the caller. That is probably what happened to Flynn.
They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.
Paul’s explanation is absolutely correct. That the NSA is empowered to spy on Americans’ communications without a warrant — in direct contravention of the core Fourth Amendment guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” — is the dirty little secret of the U.S. Surveillance State.
As I documented at the height of the controversy over the Snowden reporting, top government officials — including President Obama — constantly deceived (and still deceive) the public by falsely telling them that their communications cannot be monitored without a warrant. Responding to the furor created over the first set of Snowden reports about domestic spying, Obama sought to reassure Americans by telling Charlie Rose: “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause.”
The right-wing chairman of the House Intelligence Committee at the time, GOP Rep. Mike Rogers, echoed Obama, telling CNN the NSA “is not listening to Americans’ phone calls. If it did, it is illegal. It is breaking the law.”
Those statements are categorically false. A key purpose of the new 2008 FISA law — which then-Senator Obama voted for during the 2008 general election after breaking his primary-race promise to filibuster it — was to legalize the once-controversial Bush/Cheney warrantless eavesdropping program, which the New York Times won a Pulitzer Prize for exposing in 2005. The crux of the Bush/Cheney controversy was that they ordered NSA to listen to Americans’ international telephone calls without warrants — which was illegal at the time — and the 2008 law purported to make that type of domestic warrantless spying legal.
Because warrantless spying on Americans is so anathema to how citizens are taught to think about their government — that’s what Obama was invoking when he falsely told Rose that it’s “the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause” — the U.S. government has long been desperate to hide from Americans the truth about NSA’s warrantless powers. U.S. officials and their media spokespeople reflexively mislead the U.S. public on this critical point.
It’s no surprise, then, that as soon as Rand Paul was done uttering the unpleasant, usually hidden truth about NSA’s domestic warrantless eavesdropping, the cavalcade of ex-intelligence-community officials who are now heavily embedded in American punditry rushed forward to attack him. One former NSA lawyer, who now writes for the IC’s most loyal online platform, Lawfare, expressed grave offense at what she claimed was Sen. Paul’s “false and irresponsible claim.”
The only thing here that’s “false and irresponsible” is Hennessey’s attempt to deceive the public about the domestic spying powers of her former employer. And many other people beyond Rand Paul have long made clear just how misleading Hennessey’s claim is.
Ted Lieu, the liberal congressman from California, has made it one of his priorities to stop the very power Hennessey and her IC colleagues pretend does not exist: warrantless spying on Americans. The 2008 FISA law that authorized it is set to expire this year, and this is what Lieu tweeted last week about his efforts to repeal that portion of it:
Section 702 of FISA allows warrantless searches on Americans. That's unconstitutional & must be changed. https://t.co/YPcqSbpmbt
And in response to the IC attacks on Paul on Sunday, Lieu explained:
@BradMossEsq Section 702 of FISA allows IC to capture info on US citizens w/o a warrant & have that used in court. We need to reform it.
As Lieu says, the 2008 FISA law explicitly allows NSA — without a warrant — to listen to Americans’ calls or read their emails with foreign nationals as long as their “intent” is to target the foreigner, not the American. Hennessey’s defense is true only in the narrowest and emptiest theoretical sense: that the statute bars the practice of “reverse targeting,” where the real intent of targeting a foreign national is to monitor what Americans are saying. But the law was designed, and is now routinely used, for exactly that outcome.
How do we know that a key purpose of the 2008 law is to allow the NSA to purposely monitor Americans’ communications without a warrant? Because NSA and other national security officials said so explicitly. This is how Jameel Jaffer, then of the ACLU, put it in 2013:
On its face, the 2008 law gives the government authority to engage in surveillance directed at people outside the United States. In the course of conducting that surveillance, though, the government inevitably sweeps up the communications of many Americans. The government often says that this surveillance of Americans’ communications is “incidental,” which makes it sound like the NSA’s surveillance of Americans’ phone calls and emails is inadvertent and, even from the government’s perspective, regrettable.
But when Bush administration officials asked Congress for this new surveillance power, they said quite explicitly that Americans’ communications were the communications of most interest to them. See, for example, FISA for the 21st Century, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Michael Hayden) (stating, in debate preceding passage of FAA’s predecessor statute, that certain communications “with one end in the United States” are the ones “that are most important to us”).
The principal purpose of the 2008 law was to make it possible for the government to collect Americans’ international communications — and to collect those communications without reference to whether any party to those communications was doing anything illegal. And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to “target” Americans in order to collect huge volumes of their communications.
During debate over that 2008 law, the White House repeatedly issued veto threats over proposed amendments from then-Sen. Russ Feingold and others to weaken NSA’s ability to use the law to monitor Americans’ communications without warrants — because enabling such warrantless eavesdropping powers was, as they themselves said, a prime objective of the new law.
When the ACLU’s Jaffer appeared in 2014 before the Privacy and Civil Liberties Oversight Board to argue that the 2008 FISA law was unconstitutional in terms of how it was written and how NSA exploits it, he made clear exactly how NSA conducts “backdoor” warrantless searches of Americans’ communications despite the bar on “reverse targeting”:
Those who actually work to protect Americans’ privacy rights and other civil liberties have been warning for years that NSA is able to purposely monitor Americans’ communications without warrants. Human Rights Watch has warned that “in reality the law allows the agency to capture potentially vast numbers of Americans’ communications with people overseas” and thus “currently underpins some of the most sweeping warrantless NSA surveillance programs that affect Americans and people across the globe.” And Marcy Wheeler, in response to Hennessey’s misleading claim on Sunday, correctly said: “I can point to court docs and congressional claims that entire point of 702 [of the 2008 FISA law] is to ID convos involving Americans.”
Elizabeth Goitein, the co-director of the Liberty and National Security Program at the Brennan Center for Justice, warned in the Boston Review that the ban on “reverse targeting” was a farce. In fact, “the program tolerates — and even contemplates — a massive amount of collection of Americans’ telephone calls, emails, and other electronic communications.” Thus, she explains, “it is likely that Americans’ communications comprise a significant portion of the 250 million internet transactions (and undisclosed number of telephone conversations) intercepted each year without a warrant or showing of probable cause.”
Even more alarming is the power NSA now has to search the immense amount of Americans’ communications data it routinely collects without a warrant. As Goitein explained: “The government may intentionally search for this information even though it would have been illegal, under section 702’s ‘reverse targeting’ prohibition, for the government to have such intent at the time of collection.”
In the wake of the controversy triggered by Trump’s accusations about Obama’s “tapping” his phones, Goitein wrote a new article explaining that there are numerous ways the government could have spied on the communications of Trump (or any American) without a warrant. She emphasized that “there have long been concerns, on both the right and left, that the legal constraints on foreign intelligence surveillance contain too many loopholes that can be exploited to access information about Americans without judicial oversight or evidence of wrongdoing.”
This is what Rand Paul meant when he said on Sunday that “because [NSA analysts] have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls.” And while — as I’ve argued previously — any leaks that reveal lying by officials are criminal yet justified even if they come from the CIA or NSA, Paul is also correct that these domestic warrantless eavesdropping powers vest the Deep State — or, if you naïvely prefer, our noble civil servants — with menacing powers against even the highest elected officials.
The warrantless gathering and searching of vast amounts of communications data essentially becomes a dossier that can be used even against domestic opponents. This is what Snowden meant in his much-maligned but absolutely true statement in his first interview with us back in 2013 that “I, sitting at my desk, could wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email.” As Paul put it on Face the Nation: “It is very dangerous, because they are revealing that now to the public.” That’s a serious concern no matter how happy one might be to see Donald Trump damaged or how much one now adores the intelligence agencies.
Congress has now begun debating whether to allow these provisions of the 2008 law to expire at the end of the year, whether to meaningfully reform them, or whether to let them be renewed again. The post-9/11 history has been that once even “temporary” measures (such as the Patriot Act) are enacted, they become permanent fixtures of our political landscape.
Perhaps the growing recognition that nobody is immune from such abusive powers will finally reverse that tide. Those eager to preserve these domestic surveillance powers in their maximalist state rely on the same tactic that has worked so well for them for 15 years now: rank disinformation.
If nothing else, this debate ought to finally obliterate that pleasing though utterly false myth that the U.S. government does not and cannot spy on Americans’ communications without warrants. It does so constantly, easily, deliberately, and by design.