An exchange between Rep. Jerrold Nadler and FBI director Robert Mueller is coming under some scrutiny after a reporter claimed it concretely proves that NSA analysts can listen to domestic phone calls without a warrant.
CNet's Declan McCullugh published a story Saturday night purporting to prove Edward Snowden's claim that NSA analysts can wiretap domestic phone calls without a warrant. His case was built entirely around an exchange between Rep. Jerrold Nadler and FBI director Robert Mueller that happened during an FBI oversight hearing with the House Judiciary committee on Thursday.
The story drew a swift and immediate reaction over social media Saturday night. But when more closely examined the conversation doesn't concretely prove McCullugh's claims. In the exchange, Nadler claims the House was told during a classified briefing that NSA analysts didn't need a warrant to tap into domestic phone calls. But McCullugh never acknowledged Mueller's part in the exchange and Nadler's uncertainty that could paint the exchange in another light. Here is the entire conversation transcribed in full:
Nadler: Secondly, under section 215, if you've gotten information from meta-data and you as a result of that think that this phone number, 873-whatever, looks suspicious and we ought to actually get the contents of that phone... do you need a new, specific warrant?
Mueller: You need at least a national security letter. All you have is telephone number, so you do not have subscriber information. So you need subscriber information; you would have to get a national security letter to get that subscriber information.
Nadler: And to...
Mueller: And if you wanted to do more...
Nadler: If you want to listen to the phone...
Mueller: Then you have to get a special, a particularized order from the FISA court directed at that particular phone and that particular individual.
Nadler: Now, is the answer you just gave me classified?
Mueller: Is what?
Nadler: The answer you just gave me classified in any way?
Mueller: I don't think so.
Nadler: Then I can say the following. We heard precisely the opposite at the briefing the other day. We heard precisely that you could get specific information from that telephone simply based on an analyst deciding that and you didn't need a new warrant. In other words, what you just said is incorrect. So there's a conflict.
Mueller: I'm not certain it's the same... I answered the same question, but I'm sorry I didn't mean to interrupt.
Nadler: Well I asked the question both times and I think it's the same question. Um, so, maybe you'd better go back and check because someone was incorrect.
Mueller: I will do that. That is my understanding of the process.
Nadler: OK, I don't question it was your understanding. It was always my understanding. I was quite startled the other day and I wanted to take this opportunity...
Mueller: I'd be happy to clarify.
You can watch the full video here. Since the scandal broke, Nadler has walked back his comments in a statement. "I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant," the New York Democrat told Buzzfeed's Andrew Kaczynski.
Seeing the full conversation reveals a slightly different picture than McCullugh was trying push forward. The FBI director testified that PRISM mostly works exactly like we've been told in the weeks since this scandal broke. An unclassified document obtained by Reuters claimed NSA officials looked at raw information for fewer than 300 telephone numbers in 2012. On Saturday, the Associated Press reported any domestic phone information collected by PRISM is stored in a secure server that requires a special warrant to access, supporting Mueller's testimony.
UPDATE: Later on Sunday, the ODNI released a statement addressing the specific charges of the CNET story:
"The statement that a single analyst can eavesdrop on domestic communications without proper legal authorization is incorrect and was not briefed to Congress. Members have been briefed on the implementation of Section 702, that it targets foreigners located overseas for a valid foreign intelligence purpose, and that it cannot be used to target Americans anywhere in the world."