Spencer Ackerman, for the Guardian:
[T]here is a fundamental discrepancy in power between the Fisa court and the NSA. The court’s judges have lamented that they possess an inability to independently determine how the NSA’s programs work, and if they’re in compliance with the limits the judges secretly impose. That leaves them at the mercy of NSA, the director of national intelligence, and the Justice Department to self-report violations. When the facts of the collection and the querying are sufficiently divergent from what the court understands – something the court only learns about when it is told – that can become a matter of law.
In other words, it can be simultaneously true that NSA doesn’t intend to break the law and that NSA’s significant technical capabilities break the law anyway. Malice isn’t the real issue. Overbroad tools are. But that’s not something that NSA had to address during its prime-time spotlight inaugurating its publicity tour.