Sen Rand Paul was asked about President Trump’s accusation that President Obama ordered the NSA to wiretap his calls. The Kentucky senator expressed skepticism about the mechanics of Trump’s specific charge, saying: “I doubt that Trump was a target directly of any kind of eavesdropping.” But he then made a broader and more crucial point about how the U.S. government spies on Americans’ communications — a point that is deliberately obscured and concealed by U.S. government defenders.
Paul explained how the NSA routinely and deliberately spies on Americans’ communications — listens to their calls and reads their emails — without a judicial warrant of any kind:
The way it works is, the FISA court, through Section 702, wiretaps foreigners and then [NSA] listens to Americans. It is a backdoor search of Americans. And because they have so much data, they can tap — type Donald Trump into their vast resources of people they are tapping overseas, and they get all of his phone calls.
And so they did this to President Obama. They — 1,227 times eavesdrops on President Obama’s phone calls. Then they mask him. But here is the problem. And General Hayden said this the other day. He said even low-level employees can unmask the caller. That is probably what happened to Flynn.
They are not targeting Americans. They are targeting foreigners. But they are doing it purposefully to get to Americans.
Paul’s explanation is absolutely correct. That the NSA is empowered to spy on Americans’ communications without a warrant — in direct contravention of the core Fourth Amendment guarantee that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause” — is the dirty little secret of the U.S. Surveillance State.
As I documented at the height of the controversy over the Snowden reporting, top government officials — including President Obama — constantly deceived (and still deceive) the public by falsely telling them that their communications cannot be monitored without a warrant. Responding to the furor created over the first set of Snowden reports about domestic spying, Obama sought to reassure Americans by telling Charlie Rose: “What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause.”
The right-wing chairman of the House Intelligence Committee at the time, GOP Rep. Mike Rogers, echoed Obama, telling CNN the NSA “is not listening to Americans’ phone calls. If it did, it is illegal. It is breaking the law.”
Those statements are categorically false. A key purpose of the new 2008 FISA law — which then-Senator Obama voted for during the 2008 general election after breaking his primary-race promise to filibuster it — was to legalize the once-controversial Bush/Cheney warrantless eavesdropping program, which the New York Times won a Pulitzer Prize for exposing in 2005. The crux of the Bush/Cheney controversy was that they ordered NSA to listen to Americans’ international telephone calls without warrants — which was illegal at the time — and the 2008 law purported to make that type of domestic warrantless spying legal.
Because warrantless spying on Americans is so anathema to how citizens are taught to think about their government — that’s what Obama was invoking when he falsely told Rose that it’s “the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause” — the U.S. government has long been desperate to hide from Americans the truth about NSA’s warrantless powers. U.S. officials and their media spokespeople reflexively mislead the U.S. public on this critical point.
It’s no surprise, then, that as soon as Rand Paul was done uttering the unpleasant, usually hidden truth about NSA’s domestic warrantless eavesdropping, the cavalcade of ex-intelligence-community officials who are now heavily embedded in American punditry rushed forward to attack him. One former NSA lawyer, who now writes for the IC’s most loyal online platform, Lawfare, expressed grave offense at what she claimed was Sen. Paul’s “false and irresponsible claim.”