Sen. Feinstein (D-Calif.)  (Source: NewsReal)
Senator Feinstein feels the NSA should do the opposite of what the law says, focus its efforts on Americans

Inexplicably, one of the U.S. intelligence community's top allies -- Sen. Dianne Feinstein (D-Calif.) -- has reversed her previous rhetoric and condemned the U.S. National Security Agency's (NSA) effort to spy on the leaders of top U.S. allies including France, Germany, Spain, and Mexico.

I. Senator Feinstein -- Key Proponent of Warrantless Spying on Americans

To understand how odd this is, you first have to understand just how intimately involved Sen. Feinstein has been in promoting and expanding the U.S.'s unprecedented, ever increasing effort to spy on its own citizens, frequently going to bat to defend the intelligence agencies' questionable behavior.

For months Sen. Feinstein, who heads the Senate Select Committee on Intelligence for the Democratic majority, for months had no compunctions with leaks that revealed the NSA was spying on Americans.

Senator Feinstein
Sen. Feinstein has defend the NSA spying on Americans unlawfully and without warrant. [Image Source: AP]

Leaks have shown that the NSA typically "assumes" individuals that use popular U.S. web services like Google Inc. (GOOG) and Yahoo! Inc. (YHOO) are foreigners and hence it claims it can collect their unencrypted data without warrant, despite the laws that govern the NSA explicitly saying it is illegal for the NSA to collect warrantless surveillance on Americans.  And the NSA admits that it commits even more flagrant violations against American citizens -- flagrant enough to make even the NSA consider it "illegal" collection of American's digital data -- thousands of times a year.

Throughout all these leaks Sen. Feinstein remained a steadfast supporter of the NSA programs.  In June she called Edward Snowden, the man who leaked this information, a "traitor" for revealing to Americans they were being spied on. She said it was treason to reveal what the federal government was doing to the public, remarking:

I don’t look at this as being a whistle-blower.  I think it’s an act of treason.  He took an oath — that oath is important.  He violated the oath, he violated the law. It’s an act of treason in my view.

She has been crucial in overpowering civil libertarians on both sides of the aisle, including Sen. Ron Wyden (D-Oreg.) and Rep. Ron Paul (D-Tex.), who believed Mr. Snowden was a whistleblower and deserved protection from prosecution.  Instead, Sen. Feinstein and her oft teary-eyed House colleague Rep. John Boehner (R-Ohio) successfully leveled criminal charges against the young leaker.

II. Editorials by Feinstein Defend Collection of Americans' Call Records

As recently as October Sen. Feinstein was adamantly defending one of the NSA's most controversial efforts -- the collection of an estimated 99 percent of Americans' call records without warrant.  These records are believed to allow the NSA to track most Americans' locations, at will, on a daily basis.

In a lengthy October 13 editorial in The Wall Street Journal (a News Corp. (NWS) publication) she wrote:

Since it was exposed in June by leaker Edward Snowden, the National Security Agency’s call-records program has become controversial and many have questioned whether its benefits are worth the costs. My answer: The program—which collects phone numbers and the duration and times of calls, but not the content of any conversations, names or locations—is necessary and must be preserved if we are to prevent terrorist attacks.
The NSA call-records program is working and contributing to our safety. It is legal and it is subject to strict oversight and thorough judicial review.

In that post she disingeneously states:

Working in combination, the call-records database and other NSA programs have aided efforts by U.S. intelligence agencies to disrupt terrorism in the U.S. approximately a dozen times in recent years, according to the NSA. This summer, the agency disclosed that 54 terrorist events have been interrupted—including plots stopped and arrests made for support to terrorism.

...despite the fact her own colleague Sen. Patrick Leahy (D-Verm.) was able to get NSA director Gen. Keith Alexander to admit that he "believes" that the NSA's call collection information was only used in two cases where terrorist actions were disrupted (not 54).  What makes Sen. Feinstein's Oct. 13 editorial more disturbing is you can scrutinize her words carefully, you see she cleverly avoids claiming that the call programs themselves did this, but if you read the post quickly it is almost certain that you would think this is what she was suggesting.

NSA spying
The NSA argues it has to break the law sometimes to perform its duties.
[Image Source: Activist Post]
In a second editorial in USA Today on Oct. 20, she yet again puffed up the NSA's effort, writing:

The call-records program is not surveillance. It does not collect the content of any communication, nor do the records include names or locations. The NSA only collects the type of information found on a telephone bill: phone numbers of calls placed and received, the time of the calls and duration. The Supreme Court has held this "metadata" is not protected under the Fourth Amendment.

Sen. Feinstein
Sen. Feinstein wrote two editorials in the last month defending the NSA collecting the call records of Americans without warrant. [Image Source: Sen. Feinstein]

So if it appeared until this week that the NSA had no stronger supporter than Sen. Feinstein.

III. You Can Spy on Americans, But Not on Foreign Leaders

Then something curious occurred.  This week, a piece in The WSJ, cited high ranking federal sources as claiming that even the President was left unaware of the NSA's five year long effort to spy on 35 top foreign leaders, many of whom led top U.S. allies:

President Barack Obama went nearly five years without knowing his own spies were bugging the phones of world leaders. Officials said the NSA has so many eavesdropping operations under way that it wouldn’t have been practical to brief him on all of them.

Obama spying
Sources close to Obama claim he was unaware of spying on foreign leaders. [Image Source: AFP]

The piece follows a statement from Edward Snowden, published by the American Civil Liberties Union (ACLU) (who is suing the NSA for unlawfully tracking and spying on Americans), which provided new details strengthening the evidence that the U.S. was spying on top foreign leaders, contrary to previous Obama administration claims.

And with that, inexplicably Sen. Feinstein changed her tune, just 9 days after her latest editorial defending the NSA's spying on Americans.  She comments:

Let me state unequivocally: I am totally opposed.  Unlike NSA’s collection of phone records under a court order, it is clear to me that certain surveillance activities have been in effect for more than a decade and that the Senate Intelligence Committee was not satisfactorily informed. Therefore our oversight needs to be strengthened and increased.

Unless the United States is engaged in hostilities against a country or there is an emergency need for this type of surveillance [the U.S. should not spy on foreign leaders' email/phone calls].  It is my understanding that President Obama was not aware Chancellor Merkel’s communications were being collected since 2002.  That is a big problem.

In other words, Sen. Feinstein is fine with the NSA spying on Americans (who are "foreigners" to the NSA, don't forget), but when it comes to spying on true foreigners, that's where she can no longer support the agency's actions.

IV. The Law Says Pretty Much the Opposite

The NSA's powers granted by Congress specifically say it can only spy on foreigners.  These powers stem from the Executive Order 12333 (President Ronald Reagan, 1981) and the Foreign Intelligence Surveillance Act of 1978 (FISA) (50 USC Chapter 36).

For example, 50 USC § 1802, says:

the President, through the Attorney General, may authorize electronic surveillance without a court order... the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers.

Now indeed, if the President did not authorize this interception it's a big problem, as the statute also says the authorization only lasts a year (so any authorization by previous President George W. Bush would ostensibly have expired in 2008).  However, if authorized by the President there's nothing in the U.S. Code -- the central book of law of the U.S. besides the Constitution -- that explicitly forbids the U.S. from spying on the leaders of ally foreign nations.

NSA spying
The law tasks the NSA from spying on foreigners, but forbids it to spy on U.S. citizens.  Sen. Feinstein is fighting to flip that equation. [Image Source: Nation of Change]

However, the law does specifically say that information may only be collected if:

there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party...

Clearly, much of the information the NSA collects comes with substantial likelihood that it's acquiring "communication[s] to which United States [people are] party."  Hence the NSA appears to be flagrantly in violation of the law of the land.

Sen. Feinstein seems to disregard this, and has said as much in numerous editorials.  But she appears greatly offended that the NSA has spied on foreign leaders, despite that being much closer to the agency's official duties.

Sources: Sen. Feinstein, ACLU [Ed. Snowden], USA Today [Sen. Feinstein editorial]

"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser

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