The official US position on the NSA is still unlimited eavesdropping power

[Commentary] In two significant but almost-completely overlooked legal briefs, the US government defended the constitutionality of the Foreign Intelligence Security Amendments Act, the controversial 2008 law that codified the Bush Administration's warrantless-wiretapping program.

That law permits the government to monitor Americans' international communications without first obtaining individualized court orders or establishing any suspicion of wrongdoing.

It's hardly surprising that the government believes the 2008 law is constitutional -- government officials advocated for its passage in 2008, and they have been vigorously defending the law ever since. Documents made public over the last eleven-and-a-half months by the Guardian and others show that the National Security Agency has been using the law aggressively. What's surprising -- even remarkable -- is what the government says on the way to its conclusion. It says, in essence, that the Constitution is utterly indifferent to the NSA's large-scale surveillance of Americans' international telephone calls.

The government also argues that Americans' privacy rights are further diminished in this context because the NSA has a "paramount" interest in examining information that crosses international borders. And, apparently contemplating a kind of race to the bottom in global privacy rights, the government even argues that Americans can't reasonably expect that their international communications will be private from the NSA when the intelligence services of so many other countries -- the government doesn't name them -- might be monitoring those communications, too.

Reform is urgently necessary, and years overdue, but this imperfect legislation would leave some of the government's most sweeping authorities intact -- and to a large extent it would leave the privacy rights, of Americans and non-Americans alike, to the mercy of the NSA. The US Congress should pass the USA Freedom Act, but this legislation must be the beginning of reform, not the end.

[Jaffer is deputy legal director at the American Civil Liberties Union and director of the ACLU's Center for Democracy]