Yeah, but What Does Jameel Jaffer Really Think?

Over at Lawfare, Ben Wittes is making excuses for the intelligence officials who’ve been saying the NSA doesn’t spy on Americans. Ben acknowledges the statement is false—“not quite accurate,” is his rather dramatic understatement. In Ben’s view, however, those who’ve been misled should blame not intelligence officials but the law, which is “so dense and so complicated” that it makes it challenging for officials to talk about the NSA’s activities “in any language that does not risk inducing later a sense of betrayal.” This is nonsense. Perhaps Ben’s right that it’s difficult to come up with a single sentence, or even a single paragraph, that clearly and comprehensively describes the nature and extent of the NSA’s surveillance of Americans. (Can you describe any federal agency’s functions in a single, comprehensive paragraph?) But it’s not difficult to come up with a sentence more accurate than “The NSA doesn’t spy on Americans.” Try this one: “The NSA spies on Americans.” Or this one: “The NSA collects a huge amount of information about Americans’ communications and in many contexts it collects the communications themselves.” Or this one: “The NSA is sometimes described as a foreign-intelligence agency but this label should not obscure the fact that a large part of the agency’s energy is dedicated to collecting and analyzing information about Americans.” Ben’s right that the foreign intelligence laws are complex and that the NSA does many things other than spy on Americans. But any official who says the NSA isn’t spying on Americans is seeking to mislead. Neither Ben nor anyone else should be making excuses for it.