Greenwald: Fisa court oversight: a look inside a secret and empty process

[BlueCheese]

16. I read through the entire thing.

Here's my take on it. This entire article is about surveillance under the new FISA (or FISA Amendment Acts of 2008), and thus communications where at least one end is outside the U.S. It does not concern the use of phone metadata, which is collected under the Patriot Act, and which includes purely domestic calls.

Greenwald takes issue with the claim that the NSA needs a warrant to look at the contents of phone calls or electronic communications of Americans. This, he says, is false, because the NSA does not need a warrant to tap the communications of people it "reasonably believes" are foreigners, and this would include communications with Americans. All the NSA needs to do is annually get approval from the FISA court that its procedures are okay; after that only the NSA monitors that it follows its procedures. This apparently differs from the original FISA, which required probable cause that the foreign person being monitored was a "foreign power or agent of a foreign power." Further, once the communications with Americans are collected, the NSA is allowed to keep and disseminate the data.

As far as I understand, those are the factual claims made in the article. Now here, for what it's worth, is my opinion.

First, it seems to me that the government could legitimately collect the calls of Americans with foreign persons if they had a valid reason to be tracking the foreign person. (For example, if the police were tapping the phone of a suspected domestic criminal, they'd also get random calls with whoever this person talks to. There's nothing wrong with that.) The NSA cannot target only the foreign communications of a U.S. person-- the person they're interested in has to be the foreign person.

So the issue, if there is one, is whether they have a valid reason and process to be tracking a foreigner, namely-- what privacy rights do foreigners have when communicating with someone inside the U.S.? From the article, it sounds like the answer is none-- if the NSA thinks you're not a U.S. person, then you're open to being monitored, whether they have reason to think you're suspicious. It could also be (my speculation) that the NSA can basically collect and examine everything between the U.S. and the rest of the world, and examine all of that, without really having any reason to suspect anyone.

What does everyone else think?