As revealed by agency documents leaked by Edward Snowden, the NSA is hungry for information on the Internet. Under programs like PRISM, it taps Google, Facebook, Microsoft, Apple, and Yahoo to look at the communications of a literally unknowable number of their users. (It's classified.)

It's inherently hard to talk about how the NSA gets this information because it obtains classified orders for surveillance under the Foreign Intelligence Surveillance Act (FISA), which is administered by a secret court. Anyone who gets a FISA order is legally obliged to keep mum about it.

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Foreign Intelligence Surveillance Court judges "have signed off on broad orders which allow the NSA to make use of information 'inadvertently' collected from domestic US communications without a warrant," Glenn Greenwald and James Ball reported, publishing two leaked documents, which detail the procedures the intelligence agency must follow to target individuals.

Via the Guardian:

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Obama defended the programs by noting that the Foreign Intelligence Surveillance Act court has to approve all targeting. But when Rose pointed out that court approves over 99.99 percent of all requests from the government, and asked if it should be more open to the public, Obama replied, "It is transparent. That’s why we set up the FISA court."

As the Electronic Frontier Foundation notes, "The FISA court, by its nature, is the opposite of transparent. In fact, it’s hard to imagine how the FISA court could be more secretive."

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Hey, look, Google not being evil! Kind of. The news sent an electric shock through a community of privacy activists and advocates who had already spent a busy morning being exasperated by a vigorous government defense of the NSA's surveillance activities mounted during a House Permanent Select Committee on Intelligence hearing.

Questions of morality aside, what Google is really trying to do is protect its reputation. The legal filing asserts that on June 6, the Guardian newspaper "published a story mischaracterizing the scope and nature of Google's receipt of and compliance with foreign intelligence surveillance requests. In particular, the story falsely alleged that Google provides the U.S. government with "direct access" to its systems, allowing the government unfettered access to the records and communications of millions of user (sic)."

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“Some people say, ‘Well, you know, Obama was this raving liberal before. Now he’s, you know, Dick Cheney.’ Dick Cheney sometimes says, ‘Yeah, you know? He took [Bush-Cheney policies] all lock, stock and barrel,'” Obama said. "My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances.”

He continued to defend the NSA's phone surveillance program, by contending that the agency is not listening to Americans' phone calls. "The way I view it, my job is both to protect the American people and to protect the American way of life, which includes our privacy. And so every program that we engage in, what I’ve said is 'Let’s examine and make sure that we’re making the right tradeoffs.'” Obama continued: "What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls, and the NSA cannot target your emails … and have not."

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Let's also say that you simply accept at face value the Government's unverified assertion that it has halted "systemic" illegal/unconstitutional surveillance by the National Security Administration. And let's say that you still believe such an assertion even though a few years after it was aired 1) the Director of National Intelligence admitted illegal surveillance was still taking place and 2) Mother Jones reports that an 86-page court ruling "determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying."

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The New York Times reports:

The Yahoo ruling, from 2008, shows the company argued that the order violated its users’ Fourth Amendment rights against unreasonable searches and seizures. The court called that worry “overblown.”

“Notwithstanding the parade of horribles trotted out by the petitioner, it has presented no evidence of any actual harm, any egregious risk of error, or any broad potential for abuse,” the court said, adding that the government’s “efforts to protect national security should not be frustrated by the courts.”

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"I encourage this, though I think it is going to be ill-fated," Durbin, the Senate majority whip, told the Hill. He continued that even if the bill, which has bipartisan support, makes it through Congress, he doesn't see Obama signing it. "I think they are going to eventually turn us down," he said, adding: "They are [just] going to say no."

"I have been offering these amendments for years ... and losing them, regularly," Durbin said.

The bill would require Attorney General Eric Holder to declassify opinions issued by the Foreign Intelligence Surveillance Court, which authorizes domestic intelligence operations, like those NSA phone surveillance programs revealed last week by the Guardian and the Washington Post, under FISA and the Patriot Act.

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The senators, including Democrat Jeff Merkley of Oregon and Tea Party favorite Mike Lee, a Republican from Utah, called for an end to the "secret law," introducing legislation that would require Attorney General Eric Holder to declassify rulings made by the Foreign Intelligence Surveillance Court, which authorizes domestic intelligence operations under FISA and the Patriot Act. The court is staffed by 11 federal district court judges, who are appointed by the chief justice of the Supreme Court and serve on a rotating basis.

“Americans deserve to know how much information about their private communications the government believes it’s allowed to take under the law,” Merkley said in a statement. “There is plenty of room to have this debate without compromising our surveillance sources or methods or tipping our hand to our enemies.  We can’t have a serious debate about how much surveillance of Americans’ communications should be permitted without ending secret law.”

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For example, Richard Haas of the Council on Foreign Relations said of Edward Snowden: "'Whistleblower' is person who reveals wrongdoing, corruption, illegal activity. none of this applies here even if you oppose U.S. government policy." Likewise, the Boston Globe's Bryan Bender insists, "I wish media would stop calling Snowden a whistleblower -- it maligns those who truly reveal corrupt or illegal activity." And the New Yorker's Jeffrey Toobin definitively states: "These were legally authorized programs."

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Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., explained on ABC’s "This Week" Sunday that in one of the signature uses of the dragnet collection of every American’s phone records, the NSA managed to track one of our own informants, David Headley, as he helped Islamic terrorists plan attacks. She did not mention that it did nothing to prevent the 2008 terrorist attack in Mumbai, which killed 166 -- and in which Headley had a role in planning.

Director of National Intelligence James Clapper called the effort to track Headley – which did manage to thwart Headley’s 2009 plans to attack a Danish newspaper – a success, in an interview with Andrea Mitchell. Such is the value of these programs, it appears, that top proponents of the program celebrate the tracking of a DEA informant gone bad as their main talking point.

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Tech companies responded to the leak by denying knowledge of PRISM, and assured the public that "we provide user data to governments only in accordance with the law," as Google chair Larry Page said in a statement on Friday.

However, a recent report in the New York Times clarifies that tech companies are, indeed, aware of some surveillance program and have been negotiating over it with the government:

The companies that negotiated with the government include Google, which owns YouTube; Microsoft, which owns Hotmail and Skype; Yahoo; Facebook; AOL; Apple; and Paltalk, according to one of the people briefed on the discussions. The companies were legally required to share the data under the Foreign Intelligence Surveillance Act. People briefed on the discussions spoke on the condition of anonymity because they are prohibited by law from discussing the content of FISA requests or even acknowledging their existence.

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Defending the National Security Agency's massive intelligence gathering operation on U.S. soil today, President Obama said the courts are an important "safeguard."

“If people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure we're abiding by the Constitution, then we're going to have some problems here,” Obama said.

James Clapper, the Director of National Intelligence, added that "all information that is acquired under this program is subject to strict, court-imposed restrictions on review and handling." Indeed, the secretive Foreign Intelligence Surveillance Court, established in 1978 in response to government abuses uncovered by a congressional report, reviews and approves intelligence gathering requests.

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It’s true, we’ve learned a lot about aspects of the vast post-9/11 surveillance state in the last 10 years, and it’s hard to keep track of who knew what when, and what mattered most about each revelation (including these latest). It’s true that George W. Bush took both the Patriot Act and the Foreign Intelligence Surveillance Act and pushed them beyond the boundaries of legality – and then Congress acted, not to rebuke Bush or rein him in, but to make those abuses legal.

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Let's start with straw men. First, Obama reassured the press that Congress has been informed for some years of the surveillance programs, which enable the NSA to collect metadata on pretty much every call, email and instant message made and sent in and from the U.S. He said:

[The programs are] classified but they're not secret in the sense that, when it comes to telephone calls, every member of Congress has been briefed on this program... With respect to all these programs, the releveant intelligence committees are fully briefed on these programs. These are programs that have have been authorized by broad bipartisan majorities repeatedly since 2006. And so, I think at the outset, it's important to understand that your duly elected representatives have been consistently informed on exactly what we're doing.

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In his first comments since the programs were publicly revealed this week, Obama says safeguards are in place. He says nobody is listening to the content of phone calls. And he says the internet targeting is aimed at foreign nationals, not American citizens.

Obama says he increased some of the "safeguards" on the programs after taking office. And he believes they help his administration stop terrorist attacks.

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They already failed that test once when they put up little to no opposition to the reauthorization of the controversial FISA Amendment Act in December. And while Democrats wanted to attach to that bill some modest safeguards against government overreach, Senate Republicans pushed for approving the bill with no debate and no changes.

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Drake, who was indicted under the Espionage Act and faced life in prison before federal charges against him were eventually dropped, told Salon Thursday that news that the NSA had a top secret order to retain millions of Americans' phone records daily came as "no surprise."

"Since 9/11, with the help of a series of enabling legislation, this sort of surveillance has become routine and institutionalized," he said. "That order is extraordinary in showing how routine this is," noted Drake -- referring to the top secret government order obtained by the Guardian, in which telecom giant Verizon is commanded "on a daily basis" to provide the NSA with "all call detail records or 'telephony metadata' created by Verizon for communications (i) between the United States and abroad, or (ii) wholly within the United States, including local telephone calls."

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The NSA got a FISA judge to order Verizon to turn over "all call detail records or 'telephony metadata' created by Verizon for communications between the United States and abroad" or "wholly within the United States, including local telephone calls." The records include "metadata," meaning the records show the phone numbers, call length and possibly location the calls were made, among lots of other helpful identifying information.

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Wire reported Monday:

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

... Magistrate [John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

The path the authorities chose is relevant for a host of reasons.

Among them, the government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

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