It is not only the words “relevance” and “imminence” that the Obama administration has redefined beyond recognition. Now it has turned its sites to the word “targeted.” The administration has claimed repeatedly that “we do not target the content of U.S. person communications without a specific warrant anywhere on the earth,” as the Deputy Director of the NSA told Congress in June. But as Charles Savage reported in the Times, the administration has now introduced a secret rule arguing that if the target is a foreign communication, bulk communications of U.S. citizens tangentially associated with the target are permissible, and individual names of U.S. citizens may be queried as long as the communications aren’t stored. The legal analysis justifying this twisting of the Foreign Intelligence Surveillance law, according to Savage, echoes still secret reasoning first introduced in 2008 by the Bush administration to justify to real time scanning of communications for malicious computer codes.
Until the administration issues the legal memos justifying its latest contortions of Foreign Intelligence Surveillance law, it’s impossible to make a firm judgment about just how elastic the arguments are. But as the belated release of the drone and Section 215 memos show, once the administration’s legal arguments are exposed to light, they are underwhelming and unconvincing. In other words, it’s not the secret nature of the programs that requires the president to tie himself in knots by giving the “least untruthful answer.” It’s the flimsiness of the legal arguments on which he is relying to justify his actions.