Collecting foreign intelligence is the National Security Agency's job, and that sometimes requires eavesdropping on Americans.
Before 9/11, however, the NSA could collect an American's information only if he or she was acting on behalf of foreign interests. Congress amended the law after 9/11 to eliminate this limitation. Today, the NSA doesn't even need an individualized court order to wiretap Americans' international communications, and it may collect their phone records if they are deemed "relevant" to an authorized investigation.
These developments are worrisome in their own right. The government has a history of using domestic surveillance to harass political enemies (Martin Luther King Jr.) and disrupt social justice movements (anti-Vietnam war protesters). Legal limits on the government's ability to spy on Americans were established after Watergate to stem such practices. These limits are being eroded.
Moreover, the NSA today goes beyond what a plain reading of the weakened law would allow. For instance, it gathers data on "foreign" targets even when it lacks any information about the target's location or nationality. It collects millions of Americans' telephone records (though not call content) because a tiny fraction may prove relevant. Equally concerning, the secret surveillance court approved these overreaches.
More transparency is needed to ensure that the NSA and surveillance court operate with more fidelity to the text of the law. But the law itself likely needs changing. The targeting standards for wiretaps should be tightened to prevent the post-9/11 law from becoming a back door to spy on Americans. And the law should be clarified to debunk the legal fiction that the significance of a few Americans' phone records should render everyone's "relevant."
Elizabeth Goitein is codirector of the Liberty and National Security program at the Brennan Center for Justice at New York University School of Law.
