NSA Letter to Congress Leaves Questions Unanswered

In a letter sent to Congress on Saturday the US Intelligence Community officially confirmed the existence of the two far-reaching surveillance programs revealed to the public this month by NSA whistleblower Edward Snowden.

Following a series of Senate and House hearings on the issue--some of them behind closed doors--the US intelligence community penned what the Guardian called the "fullest official account yet of how the US gathers domestic telephone data and overseas internet traffic."

The letter claims that NSA surveillance techniques are covered under the Congress-authorized section 215 of the Patriot Act and section 702 of the FISA Amendments Act, and that phone and internet communications are collected on the basis of "reasonable suspicion based on specific and articulated facts, that an identifier is associated with specific foreign terrorist organizations."

The letter provides some new technical insights into the programs.

For instance, the letter states:

The [phone call] metadata is segregated and queries against the database are documented and audited. Only a small number of specifically-trained officials may access the data; the Foreign Intelligence Surveillance Court reviews the program every 90 days; and the data must be destroyed within five years.

However, as the Guardian reports, "the briefing document does not address concerns raised by a number of members of Congress as to whether further court approval is required to query the database for these specific records, simply saying officers require 'reasonable suspicion based on specific and articulated facts, that an identifier is associated with specific foreign terrorist organizations'."

In other words, it is still unclear whether specific acts of data monitoring actually require the secretive FISA court approvals, including database queries of Americans' phone records and even call content, as Sen. Dianne Feinstein (D-Calif.) had alluded to earlier in the week.

In a separate instance on Saturday, Rep. Jerrold Nadler, a New York Democrat, who was present at a secret briefing given by intelligence chiefs, as the Guardian reports, "claims he was told that agents did not have to obtain extra approval to listen to the content of [phone] calls."

Nadler said actual phone call content, not just its "metadata" could be accessed "simply based on an analyst deciding that."

"I was rather startled," Nadler told CNET.

As CNET reports:

Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."

If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA's formidable eavesdropping apparatus works domestically, it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler's disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.

Saturday's letter, marketed as a tell-all revelation, seems mostly to repeat NSA director Keith Alexander's claims that the NSA's actions are justified predominantly through "checks" provided through the secretive FISA court system, one which has never actually at any point turned down a request to search or electronically spy on people within the United States, earlier reports have shown.

It similarly repeats Alexander's claims that the program has successfully snared "potential terrorist plots in the US and more than 20 other countries"--which are claims that have left many, including senators Ron Wyden and Mark Udall, unswayed due to a continued lack of detailed evidence.

"No other new details about the plots or the countries involved were part of the newly declassified information released to Congress on Saturday and made public by the Senate Intelligence Committee," the Associated Pressreports.

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