Tim Cusing writes: One of the more surprising/awful aspects of the NSA leaks is just how much of what it does is perfectly legal. As we’ve discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they’ve hit those walls, they’ve been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal.

NSA reps currently on the receiving end of hearings and committee inquiries have repeatedly stressed this point: it’s all completely legal and subject to oversight. Glossed over is the fact that the legality can rarely be challenged because the spied-upon are rarely granted standing. Also routinely glossed over is the fact that Congress has been lied to repeatedly about the details and extent of these programs.

Slate’s Ryan Gallagher has a post taking Michael Hayden, former director of the NSA and CIA, to task for statements he made supporting X-KEYSCORE shortly after the Guardian released the leaked documents.

Following the disclosures, Hayden appeared on CNN to discuss the agency’s surveillance programs. The general, who directed the NSA from 1999 through 2005, was remarkably candid in his responses to Erin Burnett’s questions about the Guardian’s XKEYSCORE report. Was there any truth to claims that the NSA is sifting through millions of browsing histories and able to collect virtually everything users do on the Internet? “Yeah,” Hayden said. “And it’s really good news.”

Not only that, Hayden went further. He revealed that the XKEYSCORE was “a tool that’s been developed over the years, and lord knows we were trying to develop similar tools when I was at the National Security Agency.” The XKEYSCORE system, Hayden said, allows analysts to enter a “straight-forward question” into a computer and sift through the “oceans of data” that have been collected as part of foreign intelligence gathering efforts.

Hayden’s enthusiasm for expanded haystack construction notwithstanding, there’s more to this interview than just the former boss applauding the work of his successors. The interview, conducted by Erin Burnett of CNN, presses a question NSA supporters like Hayden (and Gen. Alexander) have been dodging since day one. Namely: does the NSA have the ability to spy on Americans’ phone calls, emails and internet usage in real time? [Continue reading…]