I’ve already posted on the general contents of Lichtblau and Risen’s seemingly quarterly report that illegal wiretapping is still going on–including the eye-popping news that Bill Clinton’s emails were illegally accessed. But I wanted to focus on one really critical passage of the story.
The N.S.A. declined to comment for this article. Wendy Morigi, a spokeswoman for Dennis C. Blair, the national intelligence director, said that because of the complex nature of surveillance and the need to adhere to the rules of the Foreign Intelligence Surveillance Court, the secret panel that oversees surveillance operation, and “other relevant laws and procedures, technical or inadvertent errors can occur.”
“When such errors are identified,” Ms. Morigi said, “they are reported to the appropriate officials, and corrective measures are taken.” [my emphasis]
The DNI is basically blaming its "technical or inadvertent errors" [no word about Clinton’s emails, which can’t be inadvertent] on "the need to adhere to the rules of FISC and other relevant laws and procedures."
Not only does this not make sense, but it completely undercuts any claim that this program is legal under the Fourth Amendment.
In one of the most important posts of mine that few people ever read, I explained why. I showed that the FISA Court of Review understood the Protect America Act (and I believe the same holds true for the FISA Amendment Act program) does not, by itself, comply with the Fourth Amendment. Rather, the FISCR explicitly said that the wiretap program only complied with the Fourth Amendment’s probable cause requirement through the application of a provision in Executive Order 12333 that requires only that the Attorney General "determine" that surveillance is directed against an agent of a foreign power. And the PAA program (and, I assume, the FAA program) only complies with the Fourth Amendment’s requirement for particularity through a set of procedures not mandated by PAA or FAA, and not shared with the telecoms handing over their customer data.
The FISCR explained:
The petitioner’s arguments about particularity and prior judicial review are defeated by the way in which the statute has been applied. When combined with the PAA’s other protections, the [redacted] procedures and the procedures incorporated through the Executive Order are constitutionally sufficient compensation for any encroachments.
The [redacted] procedures [redacted] are delineated in an ex parte appendix filed by the government. They also are described, albeit with greater generality, in the government’s brief. [redacted] Although the PAA itself does not mandate a showing of particularity, see 50 USC 1805b(b), this pre-surveillance procedure strikes us as analogous to and in conformity with the particularity showing contemplated by Sealed Case. [my emphasis]
These are precisely the procedures, I suspect, that the DNI’s office is now blaming for the "inadvertent" review of US person emails.