For those who want to read them, the Guardian has posted both the minimization procedures and the targeting procedures.
But I can’t ignore either that these documents are out there now. And that being the case, they are already shaping in important ways the debate over 702 surveillance. The journalism around them has been alarmist and distortive. Slate writes that “Last week, President Obama claimed in an interview that the National Security Agency could not listen to Americans’ phone calls or read their emails. But newly revealed secret government documents—the latest in the series of high-profile leaks about classified surveillance—outline how the NSA can sweep up and store Americans’ communications.” The New Yorker’s Amy Davidson writes:
reading the new documents, which include a secret FISA court order that amounts to a gift certificate for one year of warrant-free spying, it becomes clear that many more “United States persons” have their communications monitored, and on much vaguer grounds, than the Obama Administration has acknowledged. “What I can say unequivocally is that, if you are a U.S. person, the N.S.A. cannot listen to your telephone calls, and the N.S.A. cannot target your e-mails,” the President said earlier this week. A 2009 memorandum signed by Eric Holder establishes a broader criteria, referring to people “reasonably believed” to be located abroad. That reasonable belief, as it turns out, can be quite shaky.
But reasonably understood, these documents should give Americans a lot of confidence that the government’s internal, never-meant-for-release guidance to its people is consistent with the law, protective of civil liberties, and pervasively designed to avoid monitoring domestic communications and those of innocent Americans overseas. While parts of the documents are operationally revealing, much of the material at their heart, at least to my eyes, is not especially sensitive and could probably have been discussed publicly. If that’s right, the government missed a huge opportunity to instill public confidence in this program by disclosing those aspects of its policies long ago.
What’s more, the documents, now that they are public, beg certain questions—questions I think the government, in light of their release, would do well to address now to the maximum extent possible.
To flesh out these points, I’m going—with no small discomfort—to give a fairly dense summary of material I do not think should have been leaked. As I say, I would not have published these documents, but that ship has sailed. The question now is whether the debate will reflect anything like what they actually say.
