On Glenn Greenwald's Latest

By Benjamin Wittes
Wednesday, July 9, 2014, 7:00 AM

After a huge amount of pre-publication hype, Glenn Greenwald's new capstone NSA story is out, and I find myself with little to say about it.

Greenwald has gotten his hands on a spreadsheet listing the email addresses of people supposedly subject to FISA surveillance, and he has identified five Muslim Americans whose addresses are on it. He has interviewed the subjects and found that they don't acknowledge being legitimate FISA targets. He has noted that nothing about their public activities would give rise to an adequate FISA application, and he has noted as well that no charges were filed against any of them. After quoting an appallingly-bigoted former FBI official (who believes, among other things, that CIA director John Brennan is a secret Muslim) and an internal government email that uses a gross ethnic slur ("Mohammed Raghead"), he concludes that we're dealing with COINTELPRO.

I have little to say about all of this because there's something big missing from Greenwald's story: Any sense of what was actually in the relevant FISA applications. Assuming for a moment that Greenwald is correct that these five people were, in fact, the subjects of FISA surveillance, there would have been a substantial document submitted to the FISA court and approved by it. That document would have had to establish probable cause that the subject was an agent of a foreign power under the FISA's complex definition of the term. Evaluating whether surveillance was appropriate without reference to what was in that document is a fruitless exercise and not an especially interesting one.

I suspect that over the next few days, commentators will try to mine the public record for disparaging information on the five people in question to try to justify the alleged surveillance. I'm not interested that game. I don't want to smear anyone. I don't believe in guilt by association. And it's actually not important what might have been in a FISA application, only what actually was in it. Until someone has some has some information about, there's really not much to talk about.

To whatever extent the five individuals Greenwald names were improperly targeted under FISA, the statute itself gives them a civil remedy ("An aggrieved person, other than . . . an agent of a foreign power . . . who has been subjected to an electronic surveillance . . . shall have a cause of action against any person who committed such violation"). I suspect we may also see a Bivens suit. Those may lead to some actual information. Until then, I'm not really interested in speculating either that the FISA applications existed and that the surveillance really took place, or that it was justified if it did, or that it was not.