The Obama administration went out of its way to get restrictions on the National Security Agency’s surveillance programs removed in 2011, allowing it to search Americans’ communications without a warrant, according to a new report.
The restrictions had been imposed on the NSA by the secret Foreign Intelligence Surveillance Act, or FISA, court.
The administration asked that the ban on searches of intercepted phone calls and emails be lifted, The Washington Post reported, and the FISA court reversed itself in 2011. The ban had been imposed at the request of the Bush administration in 2008, according to The Post. The Obama administration, though, wanted the FISA court to increase the NSA’s authority to search communications.
The FISA court is the only court that can grant warrants to authorize such surveillance efforts. The Post apparently learned about this action from an opinion written by John D. Bates, a former chief judge of the FISA court, and discussions with unnamed federal officials.
The NSA Is Monitoring Individuals’ Communications
All of this was done without public debate or congressional intervention, The Post noted.
The revelations indicate that the NSA is targeting the communications of individual Americans, said Gregory T. Nojeim, a senior counsel at the Center for Democracy and Technology.
“The government says, ‘We’re not targeting U.S. persons,’ ” Nojeim said. “But then they never say, ‘We turn around and deliberately search for Americans’ records in what we took from the wire.’ That, to me, is not so different from targeting Americans at the outset.”
The only reason the administration would want this ability is to be able to monitor specific communications. The FISA court had banned such searches in 2008 because they were considered warrantless searches.
The Obama administration asked for the ban to be lifted in a court brief filed in 2011. Robert S. Litt, the general counsel of the Office of the Director of National Intelligence, defended the administration’s actions, saying the government needed the ability to track down terrorist conspirators operating in the United States.
Back Door Loophole
US Senators Ron Wyden (D-Oregon) and Mark Udall (D-Colorado) warned that it created a backdoor loophole for the NSA to conduct warrantless wiretapping. The senators introduced legislation that would have banned the practice, but it died in committee.
Ron Wyden says the government’s actions are unconstitutional.
“The [surveillance] Court documents declassified recently show that in late 2011 the court authorized the NSA to conduct warrantless searches of individual Americans’ communications using an authority intended to target only foreigners,” Wyden said. “Our intelligence agencies need the authority to target the communications of foreigners, but for government agencies to deliberately read the e-mails or listen to the phone calls of individual Americans, the Constitution requires a warrant.”
Said Robert Litt, “If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that. I’m not aware of other situations where once we have lawfully collected information, we have to go back and get a warrant to look at the information we’ve already collected.”
The NSA can store emails collected from average Americans for up to six years under the changes approved by FISA. The agency can keep the emails longer if it believes the communications have an intelligence or counterintelligence purpose.
Basically, this means that the NSA can store the emails and any information contained in them for as long as it wants. The FISA court effectively removed all the restrictions for storing the emails. Frighteningly, the NSA intercepts 250 million emails every year, and 91 percent of them come from US companies such as Google.
Mark Udall said the Founding Fathers would strongly disagree with the government’s actions – essentially warrantless searches.
“Our Founders laid out a roadmap where Americans’ privacy rights are protected before their communications are seized or searched — not after the fact,” Udall said.