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PRISM's Not-So-Slippery Slope

4:08 PM, Jun 11, 2013 • By JOHN MCCORMACK
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Michael Hayden, former NSA and CIA chief, said in an interview Sunday with NPR that analysts must immediately stop a search if they discover they're looking at American-to-American communications. "As you go through it, you are under a constant requirement," Hayden said, to try to determine "whether you're still sure it's foreign or American. And if it's American, you're done."

It's fine to be skeptical of the government's claims. Some have turned out to be false. But we should also be skeptical of the Washington Post and its source. Journalist Ed Bott notes that the Post has already changed its story once because it "took a leaked PowerPoint presentation from a single anonymous source and leaped to conclusions without supporting evidence." Furthermore, Bott writes:  

In its original story, the Post calls the source of the documents "a career intelligence officer" who provided these materials "in order to expose what he believes to be a gross intrusion on privacy." We now know that the source was Edward Snowden, who was not an intelligence officer but an "infrastructure analyst" who had been in his current position with an external contractor for only three months. The "career intelligence officer" description seems exaggerated. 

As Michael Moynihan writes at the Daily Beast, Snowden "indulges in the conspiratorial." Snowden told a Washington Post reporter that the U.S. intelligence community "will most certainly kill" the Post reporter to stop the leak about the NSA. This is simply delusional. So long as you are an American citizen--and are not a senior operational leader of al Qaeda camped out in some place like Yemen--there is no reason to believe that the American government will target you for assassination. That does not mean that other claims made by Snowden are necessarily inaccurate, but it should heighten our skepticism.

Back to the potential problem with PRISM: How many "incidental" American-to-American communications are collected by the NSA? And is it possible that emails between American citizens collected "incidentally" by PRISM might be shared with law enforcement officials to bust Americans for run of the mill crimes? We do not have a definitive answer.

The fact sheet issued by DNI James Clapper says that "the dissemination of information about U.S. persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm." But is Clapper referring to "information about U.S. citizens" obtained through incidental collection of American-to-American communications? Or is he referring to information about U.S. citizens obtained by legitimately viewing foreign communications? Whatever the case, when may such information be disseminated and to whom? A spokesman for the DNI did not respond to a request for comment from THE WEEKLY STANDARD.

"I think what they can do in the way of disseminating the American-to-American communications they 'incidentally' seize depends on what the minimization instructions say," Andrew McCarthy told me. "I see that the Post reported in 2010 that the government says it purges these improper seizures. I assume that is because the minimization instructions require that -- but I have not seen the minimization instructions (which I think are classified)."

No one has alleged that "incidental" information obtained by the NSA has been shared with law enforcement officials. If it were, such evidence would likely be thrown out in court, since it was gathered through a warrantless search.

The federal government should never be able to use American-to-American communications picked up accidentally through foreign intelligence gathering operations to arrest or prosecute U.S. citizens. If the FISA law needs to be amended to make it perfectly clear that the government cannot do that, then it should be amended, both to protect the rights of Americans and to protect a useful anti-terror program from being dismantled.

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