At a House Judiciary Committee hearing on June 13, Rep. Jerrold Nadler (D-NY) asked FBI Director Robert Mueller if the National Security Agency (NSA) needs specific court approval before listening to a domestic phone call.
Mueller said yes.
Analysis of leaked NSA documents by Glenn Greenwald and James Ball of the Guardian suggests that this is not true.
Here's the exchange from the June 13 hearing:
"[U]nder section 215 [of The Patriot Act], if you’ve gotten information from metadata, and you [decide], 'gee, this phone number, 873-whatever, looks suspicious and we ought to actually get the contents of that phone.' Do you need a new specific warrant?" Nadler asked.
After a brief exchange, the congressman asked again: "If you wanted to listen to the [content of a phone call] —"
Mueller cut him off: "Then you would have to get a special, a particularized order from the FISA Court directed at that particular phone and that particular individual."
Nadler immediately disputed this statement, claiming he heard a conflicting answer at a classified briefing, and the two men basically agreed to disagree.
After the hearing was over, however, Nadler was contacted by the White House and subsequently retracted his claim.
...
Fast-forward to June 21: Based on top secret documents leaked by Edward Snowden via Greenwald, it appears the FBI director was wrong about needing a specific warrant to listen to a domestic call.
The top secret procedures reveal that it's largely up to the discretion of NSA analysts — as opposed to their superiors or the courts — to decide when to examine or destroy particular U.S. communications that are collected en masse.
Initially, all persons are "presumed to be a non-United States person unless such person can be positively identified as a United States person."
NSA analysts without warrants perform "analytic checks ... using content collection to determine if the target" is in the U.S.
That means, according to Greenwald and Ball, that if it appears "a target is in fact located in the US, analysts are permitted to look at the content of messages, or listen to phone calls, to establish if this is indeed the case" (emphasis added).
Last week Snowden said "Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. ... at the end of the day, someone at NSA still has the content of your communications."
The authority is granted to NSA analysts when a FISA court judges signs a broad (as opposed to particularized) one-paragraph order declaring that general procedures submitted by the attorney general on behalf of the NSA are consistent with U.S. law and fourth amendment.
From the NSA protocols for minimizing data collected on U.S. citizens:
Personnel will exercise reasonable judgment in determining whether information acquired must be minimized and will destroy inadvertently acquired communications of or concerning a United States person at the earliest practicable point.
Greenwald and Ball explain that, according to the documents, NSA analysts can retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.
Furthermore, the minimization procedures state that U.S. communications can be analyzed to produce intelligence:
Communications of or concerning United States persons that may be related to the authorized purpose of the acquisition may be forwarded to analytic personnel responsible for producing intelligence information from the collected data.
Strikingly, the access is such that the CIA and FBI provide "targets for which NSA may provide un-minimized communications," suggesting that the CIA can get whatever raw domestic data it wants from the NSA.
The bottom line: Since both foreign and domestic communications are already acquired by the NSA through indiscriminate data collection, the loose rules revealed by the NSA documents and personal discretion are the only thing preventing analyst from listening to a phone call without a warrant.
Based on this information, Mueller's statement to Congress appears to be incorrect.
Without specifying Mueller, Greenwald and Ball also concluded that past statements from the White House appear to be untrue.
From the Guardian:
The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants.
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.
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