We have seen a continuing array of spins by the White House and its allies to excuse the massive assault on privacy in the recently revealed warrantless surveillance programs. This effort has included perjury by high-ranking officials, an effort to redefine privacy in a new surveillance-friendly image, ever increasing claims of averting “plots” and misdirection toward other “threats” to privacy. However, one of the consistent claims has been that no content of communications was reviewed — an argument that itself is fallacious. Now however it appears that even that assurance is false. There are various reports that the content of the warrantless communications was accessible. Now, it has also been confirmed that there are two documents dated July 2009 and signed by Attorney General Holder allows the NSA to use “inadvertently acquired” communications.
We have previously discussed the repeatedly insistence by Obama that his Administration would go to a “court” for the review of any actual communications. As noted earlier, the Foreign Intelligence Surveillance Act (FISA), or secret court, is treated as if it were a real court or had some meaningful powers of review. Obama previously told Charlie Rose, “That’s why we set up the FISA court.” Of course, he did not set up the FISA court which has been around for decades and widely ridiculed as an absurd rubberstamp for the intelligence agency. Only a couple of applications have been denied in the history of that “court.” When I had occasion to get into the court as a young intern with NSA, it set in place a lifelong opposition to it as an insult to the very concept of legal process. For Obama to cite this “court” as the guarantee of transparency is nothing short of insulting. This is the court that classifies (at the demand of Obama’s Administration) the very legal interpretations used to justify massive warrantless searches of citizens.
It now appears that this “court” agreed to allow the Administration to use the content of communications that are inadvertently gathered. In addition, the latest report from Glenn Greenwald and James Ball state “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 e-mail information without warrants.”
The FISA court reportedly allowed the NSA to keep data “that could potentially contain details of U.S. persons” for up to five years, and to retain and use “inadvertently acquired” domestic communications that 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.”
As previously discussed, it is not clear why citizens should believe assurance from the government and Congress given the refusal to deal with past perjury by people like Clapper or the ever-climbing claims made by officials. In the meantime, Eric Holder is continuing his role as the President’s “sin eater” in ignoring such admitted false statements to avoid enforcing the criminal laws against Administration officials like Clapper. So much for the person a MSNBC contributor calls the “Moses of our time.”
The latest report states that “the material collected can be retained, if it is useful, though in a segregated database.” If true, it would be the ultimate expression of the new privacy under Obama. The question is no longer whether it is constitutional, just whether it is useful.