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The White House and State Department signed off on surveillance targeting phone conversations of friendly foreign leaders, current and former U.S. intelligence officials said Monday, pushing back against assertions that President Obama and his aides were unaware of the high-level eavesdropping. Professional staff members at the National Security Agency and other U.S. intelligence agencies are angry, these officials say, believing the president has cast them adrift as he tries to distance himself from the disclosures by former NSA contractor Edward Snowden that have strained ties with close allies. The resistance emerged as the White House said it would curtail foreign intelligence collection in some cases and two senior U.S. senators called for investigations of the practice. France, Germany, Italy, Mexico and Sweden have all publicly complained about the NSA surveillance operations, which reportedly captured private cellphone conversations by German Chancellor Angela Merkel, among other foreign leaders.

On Monday, as Spain joined the protest, the fallout also spread to Capitol Hill.

Until now, members of Congress have chiefly focused their attention on Snowden's disclosures about the NSA's collection of U.S. telephone and email records under secret court orders. "With respect to NSA collection of intelligence on leaders of U.S. allies — including France, Spain, Mexico and Germany — let me state unequivocally: I am totally opposed," said Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee. "Unless the United States is engaged in hostilities against a country or there is an emergency need for this type of surveillance, I do not believe the United States should be collecting phone calls or emails of friendly presidents and prime ministers," she said in a statement. Feinstein said the Intelligence Committee had not been told of "certain surveillance activities" for more than a decade, and she said she would initiate a major review of the NSA operation. She added that the White House had informed her that "collection on our allies will not continue," although other officials said most U.S. surveillance overseas would not be affected. Sen. John McCain (R-Ariz.), ranking minority member of the Armed Services Committee, said Congress should consider creating a special select committee to examine U.S. eavesdropping on foreign leaders.

Disclosure of U.S. intelligence surveillance activities in Germany and other allied countries has aroused angry public reaction in those countries, and has prompted discussion of the possibility of negotiating “no spy zones” abroad in which certain types of intelligence collection would be renounced and prohibited. Some have spoken of extending to Germany or other countries the “Five Eyes” agreement that has long existed among the US, the UK, Canada, Australia and New Zealand to share intelligence, and not to spy on each other. But a rarely-noted statute could make it difficult for any U.S. administration to achieve an international agreement involving binding new limits on intelligence collection against a foreign country, unless Congress enacts the limitation itself.

In the FY 2001 intelligence authorization act (P.L. 106-567, sect. 308), Congress said that the imperatives of U.S. intelligence gathering are to be understood to take precedence over any treaty or international agreement: “No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.” By way of explanation, the Senate Intelligence Committee said in a 2000 report:  “There has been a concern that future legislation implementing international agreements could be interpreted…. as restricting intelligence activities that are otherwise entirely consistent with U.S. law and policy.” At a minimum, this provision appears to complicate any such restriction on intelligence activities that is advanced by international agreement, unless it is explicitly affirmed by Congress itself.

Senators on Wednesday expressed alarm at explosive allegations that the CIA might have spied on their computers to keep tabs on their controversial review of Bush-era “enhanced interrogation” techniques.ADVERTISEMENTLawmakers from both parties said that if the allegations against the CIA prove true, intelligence officials might have violated the law — and certainly violated the separation of powers enshrined in the Constitution.“I’m assuming that’s it’s not true, but if it is true, it should be World War III in terms of Congress standing up for itself against the CIA, ” Sen. Lindsey Graham (R-S.C.) told The Hill.Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) confirmed Wednesday that the CIA inspector general was investigating accusations that the covert agency had peered into the panel’s computers. But she didn’t comment on reports that the investigator has referred the matter to the Justice Department.Senate Armed Services Committee Chairman Carl Levin (D-Mich.), an ex officio member of the Intelligence panel, said the charge of spying is “extremely serious.”“There are laws against intruding and tampering, hacking into, accessing computers without permission. And that law applies to everybody,” he said.Brennan in a statement said he was "dismayed" by the “spurious allegations,” which he said were "wholly unsupported by the facts."

His statement was released Wednesday evening as McClatchy reported that the computer spying was allegedly discovered when the CIA confronted the Senate Intelligence panel about documents removed from the agency’s headquarters."I am very confident that the appropriate authorities reviewing this matter will determine where wrongdoing, if any, occurred in either the Executive Branch or Legislative Branch," Brennan said.“Until then, I would encourage others to refrain from outbursts that do a disservice to the important relationship that needs to be maintained between intelligence officials and congressional overseers."The allegations escalated a long-simmering feud between Democrats on the Intelligence panel and the CIA over the committee’s classified interrogation report, which provides an exhaustive look at the treatment of detainees in the years after Sept. 11.Sen. Mark Udall (Colo.) and two other Democrats on the Intelligence panel have criticized the CIA and its director, John Brennan, for blocking their efforts to declassify the 6,300-page investigation.“The CIA tried to intimidate the Intelligence Committee, plain and simple,” Udall said. “I’m going to keep fighting like hell to make sure the CIA never dodges congressional oversight again.”

Senators have said their review, which was completed in December 2012, is harshly critical of interrogation techniques such as waterboarding, concluding that they were ineffective and did not contribute to the capture of Osama bin Laden.Udall and other Democrats say the report needs to be released because it will "set the record straight" about the use of techniques that critics say amount to torture.While Democrats on the panel backed the report’s findings, most of the Intelligence Committee Republicans dissented.The CIA has objected to some of the report’s conclusions as well, though Udall says its internal review contradicts the agency’s public statements.Sen. Martin Heinrich (D-N.M.), who has joined Udall in pressing for the release of the report, said the allegations about CIA spying show the lengths that the agency will go to protect itself.“I think it’s been pretty clear that the CIA will do just about anything to make sure that this detention and interrogation report doesn’t come out,” Heinrich told The Hill.

The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers. A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance. Related Coverage Text: Document Describes Eavesdropping on American Law FirmFEB. 15, 2014 The government of Indonesia had retained the law firm for help in trade talks, according to the February 2013 document. It reports that the N.S.A.’s Australian counterpart, the Australian Signals Directorate, notified the agency that it was conducting surveillance of the talks, including communications between Indonesian officials and the American law firm, and offered to share the information.

The Australians told officials at an N.S.A. liaison office in Canberra, Australia, that “information covered by attorney-client privilege may be included” in the intelligence gathering, according to the document, a monthly bulletin from the Canberra office. The law firm was not identified, but Mayer Brown, a Chicago-based firm with a global practice, was then advising the Indonesian government on trade issues. On behalf of the Australians, the liaison officials asked the N.S.A. general counsel’s office for guidance about the spying. The bulletin notes only that the counsel’s office “provided clear guidance” and that the Australian agency “has been able to continue to cover the talks, providing highly useful intelligence for interested US customers.” The N.S.A. declined to answer questions about the reported surveillance, including whether information involving the American law firm was shared with United States trade officials or negotiators.

Most attorney-client conversations do not get special protections under American law from N.S.A. eavesdropping. Amid growing concerns about surveillance and hacking, the American Bar Association in 2012 revised its ethics rules to explicitly require lawyers to “make reasonable efforts” to protect confidential information from unauthorized disclosure to outsiders.Last year, the Supreme Court, in a 5-to-4 decision, rebuffed a legal challenge to a 2008 law allowing warrantless wiretapping that was brought in part by lawyers with foreign clients they believed were likely targets of N.S.A. monitoring. The lawyers contended that the law raised risks that required them to take costly measures, like traveling overseas to meet clients, to protect sensitive communications. But the Supreme Court dismissed their fears as “speculative.”The N.S.A. is prohibited from targeting Americans, including businesses, law firms and other organizations based in the United States, for surveillance without warrants, and intelligence officials have repeatedly said the N.S.A. does not use the spy services of its partners in the so-called Five Eyes alliance — Australia, Britain, Canada and New Zealand — to skirt the law.

The National Security Agency is secretly intercepting, recording, and archiving the audio of virtually every cell phone conversation on the island nation of the Bahamas. According to documents provided by NSA whistleblower Edward Snowden, the surveillance is part of a top-secret system – code-named SOMALGET – that was implemented without the knowledge or consent of the Bahamian government. Instead, the agency appears to have used access legally obtained in cooperation with the U.S. Drug Enforcement Administration to open a backdoor to the country’s cellular telephone network, enabling it to covertly record and store the “full-take audio” of every mobile call made to, from and within the Bahamas – and to replay those calls for up to a month. SOMALGET is part of a broader NSA program called MYSTIC, which The Intercept has learned is being used to secretly monitor the telecommunications systems of the Bahamas and several other countries, including Mexico, the Philippines, and Kenya. But while MYSTIC scrapes mobile networks for so-called “metadata” – information that reveals the time, source, and destination of calls – SOMALGET is a cutting-edge tool that enables the NSA to vacuum up and store the actual content of every conversation in an entire country.

All told, the NSA is using MYSTIC to gather personal data on mobile calls placed in countries with a combined population of more than 250 million people. And according to classified documents, the agency is seeking funding to export the sweeping surveillance capability elsewhere. The program raises profound questions about the nature and extent of American surveillance abroad. The U.S. intelligence community routinely justifies its massive spying efforts by citing the threats to national security posed by global terrorism and unpredictable rival nations like Russia and Iran. But the NSA documents indicate that SOMALGET has been deployed in the Bahamas to locate “international narcotics traffickers and special-interest alien smugglers” – traditional law-enforcement concerns, but a far cry from derailing terror plots or intercepting weapons of mass destruction.

By targeting the Bahamas’ entire mobile network, the NSA is intentionally collecting and retaining intelligence on millions of people who have not been accused of any crime or terrorist activity. Nearly five million Americans visit the country each year, and many prominent U.S. citizens keep homes there, including Sen. Tom Harkin (D-Iowa), Bill Gates, and Oprah Winfrey.

A bipartisan group of 26 US senators has written to intelligence chiefs to complain that the administration is relying on a "secret body of law" to collect massive amounts of data on US citizens.The senators accuse officials of making misleading statements and demand that the director of national intelligence James Clapper answer a series of specific questions on the scale of domestic surveillance as well as the legal justification for it.In their strongly-worded letter to Clapper, the senators said they believed the government may be misinterpreting existing legislation to justify the sweeping collection of telephone and internet data revealed by the Guardian."We are concerned that by depending on secret interpretations of the Patriot Act that differed from an intuitive reading of the statute, this program essentially relied for years on a secret body of law," they say.

"This and misleading statements by intelligence officials have prevented our constituents from evaluating the decisions that their government was making, and will unfortunately undermine trust in government more broadly."This is the strongest attack yet from Congress since the disclosures began, and comes after Clapper admitted he had given "the least untruthful answer possible" when pushed on these issues by Senators at a hearing before the latest revelations by the Guardian and the Washington Post.In a press statement, the group of senators added: "The recent public disclosures of secret government surveillance programs have exposed how secret interpretations of the USA Patriot Act have allowed for the bulk collection of massive amounts of data on the communications of ordinary Americans with no connection to wrongdoing."

They said: "Reliance on secret law to conduct domestic surveillance activities raises serious civil liberty concerns and all but removes the public from an informed national security and civil liberty debate." A spokesman for the office of the director of national intelligence (ODNI) acknowledged the letter. "The ODNI received a letter from 26 senators this morning requesting further engagement on vital intelligence programs recently disclosed in the media, which we are still evaluating. The intelligence and law enforcement communities will continue to work with all members of Congress to ensure the proper balance of privacy and protection for American citizens."The letter was organised by Oregan Democrat Ron Wyden, a member of the intelligence committee, but includes four Republican senators: Mark Kirk, Mike Lee, Lisa Murkowski and Dean Heller.

The top lawyer for the US intelligence community and the National Security Agency said on Wednesday that the spy agencies are giving new consideration to the privacy rights of non-Americans in the wake of a diplomatic row over the surveillance of foreign leaders. Speaking at a conference on national security law sponsored by the American Bar Association on Thursday, the general counsel for the office of the director of national intelligence, Robert Litt, said intelligence chiefs were giving "a lot of thought" to the issue. His comments came a day after General Keith Alexander, the NSA director, stated that the spy agency is open to scaling back some of its operations on foreign leaders, following an unfolding diplomatic crisis sparked by revelations that the NSA spied on German chancellor Angela Merkel. 

US law provides greater legal protection to those defined as "US persons", which includes American citizens and foreigners living in the US. "On the issue of US person versus non-US person, that’s an issue we’re giving a lot of thought to now,” said Litt. “It’s not surprising that the law gives more protections to US citizens or persons who are in this country,” Litt added. “That doesn’t mean that we have no protection for non-US persons, and the principal protection we have is the requirement that the collection, retention and dissemination of information has to be for a valid foreign intelligence purpose.” Litt said the intelligence agencies were “giving some thought to whether there are ways that we can both introduce a little more rigor into that requirement and perhaps a little more transparency into how we enforce that requirement.” Litt and NSA general counsel Rajesh De would not answer a question from the Guardian about the legal basis for a different, unfolding NSA controversy: the new allegation that the NSA intercepts data transiting between the foreign data centers of Google and Yahoo, two longtime NSA partners, published in the Washington Post.

But De took issue with a suggestion that the Post story prompted that the NSA interception would at times rely on a seminal executive order that defines basic powers and operations of the intelligence agencies, known as Executive Order 12333, rather than the relatively restrictive Foreign Intelligence Surveillance Act, or Fisa. “The implication, the insinuation, the suggestion or the outright statement that an agency like NSA would use authority under Executive Order 12333 to evade, skirt or go around Fisa is simply inaccurate,” De said. On Tuesday, the director of national intelligence, James Clapper, testified to the House intelligence panel that they considered US corporations to be “US persons,” meaning their communications and associated data enjoyed legal privileges associated with citizenship. But neither Litt nor De would explain whether that category protected communications data transiting between the data centers of US companies.

On Wednesday, France woke up to find that the National Security Agency had been snooping on the phones of its last three presidents. Top-secret documents provided by WikiLeaks to two media outlets, Mediapart and Libération, showed that the NSA had access to confidential conversations of France’s highest ranking officials, including the country’s current president, François Hollande; the prime minister in 2012, Jean-Marc Ayrault; and former presidents Nicolas Sarkozy and Jacques Chirac. Yet also today, the lower house of France’s legislature, the National Assembly, passed a sweeping surveillance law. The law provides a new framework for the country’s intelligence agencies to expand their surveillance activities. Opponents of the law were quick to mock the government for vigorously protesting being surveilled by one of the country’s closest allies while passing a law that gives its own intelligence services vast powers with what its opponents regard as little oversight. But for those who support the new law, the new revelations of NSA spying showed the urgent need to update the tools available to France’s spies.

The response from the French government today was firm but predictable. Senior intelligence officials will travel to the U.S. to meet their counterparts in Washington, while the U.S. ambassador in Paris was summoned to the Elysee Palace. A similar scenario played out in 2013, when Le Monde published Snowden documents that revealed some of the extent of American surveillance in France. Prime Minister Manuel Valls said today that he wants a “code of conduct” to guide the relationship between France and the U.S. on intelligence activities — but the government demanded the exact same thing almost two years ago. When The Intercept published NSA documents in March indicating the Five Eyes — the NSA’s core allies — were intercepting large swaths of internet traffic in France’s Pacific islands, an official protest from France was nowhere to be heard. Even when it appeared that France’s closest ally, Germany, was using its surveillance capabilities to spy, on behalf of the NSA, on France’s foreign affairs ministry and some of the country’s most strategic companies, French authorities remained silent.

Until the law was passed, France’s intelligence services operated almost without any laws to regulate them. Although the new law delivers a much-needed framework, its safeguards are regarded by many critics as insufficient. The powers of the oversight body in charge of the intelligence agencies have been slightly strengthened and it will be possible, if a citizen suspects she is being surveilled, to take her case before the Conseil d’Etat, France’s highest court. But other parts of the law have drawn controversy, including the way it defines the purposes the government can invoke to surveil French residents. The categories extend well beyond terrorism. Many opponents of the law think these guidelines are so broad that they could enable political surveillance. But the key point of disagreement is what the government calls “black boxes.” The law allows the use of government equipment inside Internet Service Providers and large web companies to analyze streams of metadata and find “terrorist” patterns and behaviors.

Due to carve-outs in federal law, U.S. whistle-blowers who work as contract employees for the intelligence community -- like confessed leaker Edward Snowden -- have virtually no protections.

There is a complex anatomy of whistle-blower protections depending on whether an employee works for an intelligence agency and whether he or she is a contractor or an employee of the government. But nowhere is the difference more stark than in the intelligence community, where contractors lack protections afforded to their government employee counterparts. Whistle-blower advocates actually fear that this lack of protections could lead to more leaks. “I would say that there is a gaping loophole for intelligence community contractors,” said Angela Canterbury, director of public policy at the Project on Government Oversight. “The riskiest whistle-blowing that you can possibly do on the government is as an intelligence contractor.”

Though whistle-blower advocates have actually won increased protections in recent months, intelligence contractors have repeatedly been left out. Intelligence workers are not covered by the Whistle-blower Protection Act. When Congress passed the Whistle-blower Protection Enhancement Act last fall, at the request of the U.S. House Intelligence Committee, the law’s protections didn’t apply to the intelligence community workers -- both contract and government employees. When Congress added whistle-blower protections specifically for contract employees to the National Defense Reauthorization Act of 2013, intelligence contractors were again excluded. To fill the void, President Obama issued Public Policy Directive (PPD) 19 in October 2012 to extend protections to national security workers. However, his directive made no mention of contractors. Because PPD-19 was initially classified and is actually being implemented in secret, advocates are unsure how strong the protections for government intelligence workers actually are. The directive made no mention of contract workers specifically and Canterbury said she would be “actually shocked and astounded” if the directive were interpreted to apply to contractors.

A Senate bill promoted as a surveillance reform would codify the ability of the National Security Agency to search its troves of foreign phone and email communications for Americans’ information, and permit law enforcement agencies to search the vast databases as well. The Fisa Improvements Act, promoted by Dianne Feinstein, the California Democrat who chairs the Senate intelligence committee, would both make permanent a loophole permitting the NSA to search for Americans’ identifying information without a warrant – and, civil libertarians fear, contains an ambiguity that might allow the FBI, the DEA and other law enforcement agencies to do the same thing. “For the first time, the statute would explicitly allow the government to proactively search through the NSA data troves of information without a warrant,” said Michelle Richardson, the surveillance lobbyist for the ACLU.

“It may also expand current practices by allowing law enforcement to directly access US person information that was nominally collected for foreign intelligence purposes. This fourth amendment back door needs to be closed, not written into stone.” Feinstein’s bill passed the committee on an 11 to 4 vote on 31 October. An expanded report on its provisions released by the committee this week added details about the ability of both intelligence and law enforcement to sift through foreign communications databases that it accumulates under section 702 of the Fisa Amendments Act of 2008. Section 6 of Feinstein’s bill blesses what her committee colleague Ron Wyden, the Oregon Democrat and civil libertarian, has called the “backdoor search provision,” which the Guardian revealed thanks to a leak by Edward Snowden.  The section permits intelligence agencies to search “the contents of communications” collected primarily overseas for identifying information on US citizens, resident aliens and people inside the US, provided that the “purpose of the query is to obtain foreign intelligence information or information necessary to understand foreign intelligence information or to assess its importance.”

Section 6 bills itself as a “restriction,” but it would not stop the NSA from performing the warrantless search, merely requiring intelligence agencies to log their queries and make them “available for review” to Congress, the Fisa court, the Justice Department and inspectors general inside the executive branch. Additionally, the report on Section 6 explicitly states that the provision “does not limit the authority of law enforcement agencies to conduct queries of data acquired pursuant to Section 702 of Fisa for law enforcement purposes.” There is ambiguity surrounding whether the FBI can currently search through the NSA’s foreign communications databases, or is reliant on the NSA to pass on information from the databases relevant to the bureau. A declassified Fisa court document from 2011 refers to “FBI minimization procedures,” but it is unclear what those procedures are. A copy of the FBI minimization procedures from 2009, acquired by the ACLU under the Freedom of Information Act is almost completely redacted. So is the section in the government’s most recent report on its Section 702 collection dealing with the FBI’s role, though it contains references to how the FBI “receive[s] … unminimized Section 70 acquired communications” from the NSA. 

The latest revelations will add to the intense public and congressional debate around the extent of NSA surveillance programs. They come as senior intelligence officials testify to the Senate judiciary committee on Wednesday, releasing classified documents in response to the Guardian's earlier stories on bulk collection of phone records and Fisa surveillance court oversight.

Just two days after news broke of an alleged poison-gas attack in northern Syria, President Trump brushed aside advice from some U.S. intelligence analysts doubting the Syrian regime’s guilt and launched a lethal retaliatory missile strike against a Syrian airfield.

Trump immediately won plaudits from Official Washington, especially from neoconservatives who have been trying to wrestle control of his foreign policy away from his nationalist and personal advisers since the days after his surprise victory on Nov. 8. There is also an internal dispute over the intelligence. On Thursday night, Secretary of State Rex Tillerson said the U.S. intelligence community assessed with a “high degree of confidence” that the Syrian government had dropped a poison gas bomb on civilians in Idlib province. But a number of intelligence sources have made contradictory assessments, saying the preponderance of evidence suggests that Al Qaeda-affiliated rebels were at fault, either by orchestrating an intentional release of a chemical agent as a provocation or by possessing containers of poison gas that ruptured during a conventional bombing raid. One intelligence source told me that the most likely scenario was a staged event by the rebels intended to force Trump to reverse a policy, announced only days earlier, that the U.S. government would no longer seek “regime change” in Syria and would focus on attacking the common enemy, Islamic terror groups that represent the core of the rebel forces.

The source said the Trump national security team split between the President’s close personal advisers, such as nationalist firebrand Steve Bannon and son-in-law Jared Kushner, on one side and old-line neocons who have regrouped under National Security Adviser H.R. McMaster, an Army general who was a protégé of neocon favorite Gen. David Petraeus. White House Infighting In this telling, the earlier ouster of retired Gen. Michael Flynn as national security adviser and this week’s removal of Bannon from the National Security Council were key steps in the reassertion of neocon influence inside the Trump presidency. The strange personalities and ideological extremism of Flynn and Bannon made their ousters easier, but they were obstacles that the neocons wanted removed. Though Bannon and Kushner are often presented as rivals, the source said, they shared the belief that Trump should tell the truth about Syria, revealing the Obama administration’s CIA analysis that a fatal sarin gas attack in 2013 was a “false-flag” operation intended to sucker President Obama into fully joining the Syrian war on the side of the rebels — and the intelligence analysts’ similar beliefs about Tuesday’s incident. Instead, Trump went along with the idea of embracing the initial rush to judgment blaming Assad for the Idlib poison-gas event. The source added that Trump saw Thursday night’s missile assault as a way to change the conversation in Washington, where his administration has been under fierce attack from Democrats claiming that his election resulted from a Russian covert operation. If changing the narrative was Trump’s goal, it achieved some initial success with several of Trump’s fiercest neocon critics, such as neocon Senators John McCain and Lindsey Graham, praising the missile strike, as did Israeli Prime Minister Benjamin Netanyahu. The neocons and Israel have long sought “regime change” in Damascus even if the ouster of Assad might lead to a victory by Islamic extremists associated with Al Qaeda and/or the Islamic State.

Intelligence community whistleblowers would have been able to submit their complaints to the Privacy and Civil Liberties Oversight Board (PCLOB) under a proposed amendment to the intelligence authorization act that was offered last week by Rep. Tulsi Gabbard (D-HI). This could have been an elegant solution to the whistleblowing conundrum posed by Edward Snowden. It made little sense for Snowden to bring his concerns about bulk collection of American phone records to the congressional intelligence committees, considering that they had already secretly embraced the practice. The PCLOB, by contrast, has staked out a position as an independent critical voice on intelligence policy. (And it has an unblemished record for protecting classified information.) The Board’s January 2014 report argued cogently and at length that the Section 215 bulk collection program was likely unlawful as well as ineffective. In short, the PCLOB seemed like a perfect fit for any potential whistleblower who might have concerns about the legality or propriety of current intelligence programs from a privacy or civil liberties perspective.

But when Rep. Gabbard offered her amendment to the intelligence authorization act last week, it was not voted down– it was blocked. The House Rules Committee declared that the amendment was “out of order” and could not be brought to a vote on the House floor. Several other amendments on transparency issues met a similar fate. These included a measure proposed by Rep. Adam Schiff to require reporting on casualties resulting from targeted killing operations, a proposal to disclose intelligence spending at the individual agency level, and another to require disclosure of the number of U.S. persons whose communications had been collected under FISA, among others. In dismay at this outcome, Rep. Rush Holt (D-NJ) and I lamented the “staggering failure of oversight” in a May 30 op-ed. See The House Committee on Intelligence Needs Oversight of Its Own, MSNBC.

The House did approve an amendment offered by Rep. John Carney (D-DE) to require the Director of National Intelligence “to issue a report to Congress on how to improve the declassification process across the intelligence community.” While the DNI’s views on the subject may indeed be of interest, the amendment failed to specify the problem it intended to address (erroneous classification standards? excessive backlogs? something else?), and so it is unclear exactly what is to be improved.

SMITH v. MARYLAND, 442 U.S. 735 (1979)

The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed. Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746. (a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347 . Pp. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736]   to the police, cf. United States v. Miller, 425 U.S. 435 . Pp. 741-746. 283 Md. 156, 389 A. 2d 858, affirmed.

In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

Laura K. Donohue is a professor at Georgetown University Law Center and director of Georgetown’s Center on National Security and the Law. The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.To the extent that the FISC sanctioned PRISM, it may be consistent with the law. But it is disingenuous to suggest that millions of Americans’ e-mails, photographs and documents are “incidental” to an investigation targeting foreigners overseas.

Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.

Snowden: That’s the key—to maintain the garden of liberty, right? This is a generational thing that we must all do continuously. We only have the rights that we protect. It doesn’t matter what we say or think we have. It’s not enough to believe in something; it matters what we actually defend. So when we think in the context of the last decade’s infringements upon personal liberty and the last year’s revelations, it’s not about surveillance. It’s about liberty. When people say, “I have nothing to hide,” what they’re saying is, “My rights don’t matter.” Because you don’t need to justify your rights as a citizen—that inverts the model of responsibility. The government must justify its intrusion into your rights. If you stop defending your rights by saying, “I don’t need them in this context” or “I can’t understand this,” they are no longer rights. You have ceded the concept of your own rights. You’ve converted them into something you get as a revocable privilege from the government, something that can be abrogated at its convenience. And that has diminished the measure of liberty within a society.

From the very beginning, I said there are two tracks of reform: there’s the political and the technical. I don’t believe the political will be successful, for exactly the reasons you underlined. The issue is too abstract for average people, who have too many things going on in their lives. And we do not live in a revolutionary time. People are not prepared to contest power. We have a system of education that is really a sort of euphemism for indoctrination. It’s not designed to create critical thinkers. We have a media that goes along with the government by parroting phrases intended to provoke a certain emotional response—for example, “national security.” Everyone says “national security” to the point that we now must use the term “national security.” But it is not national security that they’re concerned with; it is state security. And that’s a key distinction. We don’t like to use the phrase “state security” in the United States because it reminds us of all the bad regimes. But it’s a key concept, because when these officials are out on TV, they’re not talking about what’s good for you. They’re not talking about what’s good for business. They’re not talking about what’s good for society. They’re talking about the protection and perpetuation of a national state system. I’m not an anarchist. I’m not saying, “Burn it to the ground.” But I’m saying we need to be aware of it, and we need to be able to distinguish when political developments are occurring that are contrary to the public interest. And that cannot happen if we do not question the premises on which they’re founded. And that’s why I don’t think political reform is likely to succeed. [Senators] Udall and Wyden, on the intelligence committee, have been sounding the alarm, but they are a minority.

The Nation: Explain the technical reform you mentioned. Snowden: We already see this happening. The issue I brought forward most clearly was that of mass surveillance, not of surveillance in general. It’s OK if we wiretap Osama bin Laden. I want to know what he’s planning—obviously not him nowadays, but that kind of thing. I don’t care if it’s a pope or a bin Laden. As long as investigators must go to a judge—an independent judge, a real judge, not a secret judge—and make a showing that there’s probable cause to issue a warrant, then they can do that. And that’s how it should be done. The problem is when they monitor all of us, en masse, all of the time, without any specific justification for intercepting in the first place, without any specific judicial showing that there’s a probable cause for that infringement of our rights.

OTTAWA — Canada’s foremost jurist on national security law has slammed CSIS for deliberately keeping the Federal Court of Canada “in the dark” about outsourcing its spying on Canadians abroad to foreign agencies, according to a redacted version of a classified court decision made public Friday.In a thundering rebuke, Federal Court Judge Richard Mosley said the Canadian Security Intelligence Service (CSIS) purposely misled him when he granted it numerous warrants beginning in 2009 to intercept the electronic communications of unidentified Canadians abroad suspected as domestic security threats.“This was a breach of the duty of candour owed by the service and their legal advisers to the court,” Mosley said in his Further Reasons for Order.CSIS also mistakenly assigned powers to the warrants that the court never authorized and which do not exist in law, he said.“It is clear that the exercise of the court’s warrant issuing authority has been used as protective cover for activities that it has not authorized,” Mosley wrote.Furthermore, tasking foreign security intelligence services to spy on Canadians overseas “carries the risk of the detention of or other harm to a Canadian person based on that information.“Given the unfortunate history of information sharing with foreign agencies over the past decade and the reviews conducted by several royal commissions, there can be no question that the Canadian agencies are aware of those hazards. It appears to me that they are using the warrants as authorization to assume those risks.”

Legal observers say this case and Mosley’s scolding will harm CSIS’s credibility and raise questions about whether the service has broken Criminal Code provisions dealing with the invasion of privacy.“When a judge says the government breached its duty of candour that is a very big ‘ouch’ moment,” Craig Forcese, a national security law scholar at the University of Ottawa, wrote in a recent blog posting.At the time the first warrants were issued, CSIS told the court “on clearly stated grounds” that the electronic intercepts would be carried out from within Canada by the Communications Security Establishment Canada (CSEC), the country’s foreign signals intelligence spy service.CSIS is largely restricted to domestic spying operations. If an investigation involves the use of intrusive techniques, such as electronic intercepts, Section 21 of the CSIS Act requires it to obtain a warrant approved by a Federal Court judge to guard the Charter right to a reasonable expectation of privacy.CSEC, meanwhile, is not allowed to spy on Canadians anywhere unless it is to provide technical and operational assistance to federal law enforcement and security agencies such as CSIS.And the federal court only has jurisdiction to authorize warrants under the CSIS Act as long as the communications in question are intercepted within Canada.

Yet once the so-called 30-08 warrants were approved by the court, CSEC, on behalf of CSIS, turned around and handed the jobs to one or more of its partners in the “Five Eyes” intelligence-gathering alliance between Canada, the United States, Great Britain, Australia and New Zealand.Mosley found out about the situation late this summer and summoned CSIS, CSEC and government officials and lawyers to court to explain themselves. The public version of his reasons for order was released Friday.

The American Civil Liberties Union (ACLU) has filed a motion to reveal the secret court opinions with “novel or significant interpretations” of surveillance law, in a renewed push for government transparency. The motion, filed Wednesday by the ACLU and Yale Law School’s Media Freedom and Information Access Clinic, asks the Foreign Intelligence Surveillance Act (FISA) Court, which rules on intelligence gathering activities in secret, to release 23 classified decisions it made between 9/11 and the passage of the USA Freedom Act in June 2015. As ACLU National Security Project staff attorney Patrick Toomey explains, the opinions are part of a “much larger collection of hidden rulings on all sorts of government surveillance activities that affect the privacy rights of Americans.” Among them is the court order that the government used to direct Yahoo to secretly scanits users’ emails for “a specific set of characters.” Toomey writes: These court rulings are essential for the public to understand how federal laws are being construed and implemented. They also show how constitutional protections for personal privacy and expressive activities are being enforced by the courts. In other words, access to these opinions is necessary for the public to properly oversee their government.

Although the USA Freedom Act requires the release of novel FISA court opinions on surveillance law, the government maintains that the rule does not apply retroactively—thereby protecting the panel from publishing many of its post-9/11 opinions, which helped create an “unprecedented buildup” of secret surveillance laws. Even after National Security Agency (NSA) whistleblower Edward Snowden revealed the scope of mass surveillance in 2013, sparking widespread outcry, dozens of rulings on spying operations remain hidden from the public eye, which stymies efforts to keep the government accountable, civil liberties advocates say. “These rulings are necessary to inform the public about the scope of the government’s surveillance powers today,” the ACLU’s motion states.

Toomey writes that the rulings helped influence a number of novel spying activities, including: The government’s use of malware, which it calls “Network Investigative Techniques” The government’s efforts to compel technology companies to weaken or circumvent their own encryption protocols The government’s efforts to compel technology companies to disclose their source code so that it can identify vulnerabilities The government’s use of “cybersignatures” to search through internet communications for evidence of computer intrusions The government’s use of stingray cell-phone tracking devices under the Foreign Intelligence Surveillance Act (FISA) The government’s warrantless surveillance of Americans under FISA Section 702—a controversial authority scheduled to expire in December 2017 The bulk collection of financial records by the CIA and FBI under Section 215 of the Patriot Act Without these rulings being made public, “it simply isn’t possible to understand the government’s claimed authority to conduct surveillance,” Toomey writes. As he told The Intercept on Wednesday, “The people of this country can’t hold the government accountable for its surveillance activities unless they know what our laws allow. These secret court opinions define the limits of the government’s spying powers. Their disclosure is essential for meaningful public oversight in our democracy.”

Obama Urged to Fire DNI Clapper December 11, 2013 (Editor Note)  Last March – before Edward Snowden revealed the NSA’s sweeping collection of phone and other data – Director of National Intelligence James Clapper said no such operation existed. Now, a group of ex-national security officials urge President Obama to fire Clapper. MEMORANDUM FOR: The President FROM: Veteran Intelligence Professionals for Sanity (VIPS) SUBJECT: Fire James Clapper

We wish to endorse the call by Rep. James Sensenbrenner Jr., Chair of the Subcommittee on Crime, Terrorism, and Homeland Security, Committee on the Judiciary, that Director of National Intelligence James Clapper should be removed and prosecuted for lying to Congress. “Lying to Congress is a federal offense, and Clapper ought to be fired and prosecuted for it,” the Wisconsin Republican said in an interview with The Hill. “The only way laws are effective is if they’re enforced.” Sensenbrenner added, “If it’s a criminal offense — and I believe Mr. Clapper has committed a criminal offense — then the Justice Department ought to do its job.”

This brief Memorandum is to inform you that we agree that no intelligence director should be able to deceive Congress and suffer no consequences. No democracy that condones such deceit at the hands of powerful, secretive intelligence directors can long endure. It seems clear that you can expect no help from Sen. Dianne Feinstein, chair of the Senate Intelligence Committee, to which Clapper has apologized for giving “clearly erroneous” testimony, and who, at the height of the controversy over his credibility, defended him as a “direct and honest” person. You must be well aware that few amendments to the U.S. Constitution are as clear as the fourth: