This is not a legal, ethical, or moral argument. I just thought it was funny.
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A few weeks ago, I wrote about a story published in The Wall Street Journal alleging that the U.S. government had spied on the communications of American citizens without authorization during a period of heightened awareness of the threat of terrorism since 9/11. I pointed out that the government’s actions made it possible for this surveillance to continue for two years without significant judicial oversight. In the process, the government had also failed to make clear who was authorized to conduct the surveillance and to whom, and what safeguards were in place to protect privacy rights while conducting surveillance.
Now, The Washington Post has reported that as the program was being implemented, an internal Justice Department document referred to by senior intelligence officials as the “legal opinion” on surveillance activities revealed the legal basis for such surveillance—specifically, that the government could target U.S. citizens without a warrant if they were suspected of a connection to terrorism. The government had apparently relied on this legal opinion as the legal basis for the NSA’s phone surveillance and Internet surveillance operations, without telling the Foreign Intelligence Surveillance Court in order to meet some of its requirements for oversight.
What is the legal basis for this ruling, which could be used as a basis in future surveillance cases? We already know that the legal basis for the NSA’s Internet surveillance and phone surveillance programs is that they are authorized by federal law: the Foreign Intelligence Surveillance Act. But the document disclosed this week says that, in the case of phone surveillance and Internet surveillance, the government relied on a 2001 FISA court opinion that says it “may be lawful to target” a U.S. citizen “in order to obtain certain foreign intelligence information.”
This is the FISA court’s opinion (or so the legal opinion published by the Justice Department says). It’s entirely consistent with the government’s public justification of its Internet surveillance program, which includes the following:
“The telephone metadata program, the first element of which was approved by the FISA court in October 2002 and was implemented in January 2004, collects information to enable targeted surveillance of known foreign agents and other persons reasonably believed to be located outside the
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