Feds Had Court Reverse Ban On Warrantless Searches On Americans Because 'We Wanted To Be Able To Do It'

Legal Issues

from the that-whole-4th-amendment-mean-anything-to-you? dept

Last month, we wrote about the revelation of the infamous backdoor search loophole that allowed the NSA to run searches on the communications of Americans without a warrant, just so long as they collected them under another program — the so-called 702 program of the FISA Amendments Act, which sucks up a large amount of communications, based on some very broad definitions of words like “target” and “relevance.” We noted that this was due to a “rule change” in 2011, but the details of that change weren’t entirely clear… until now.

The Washington Post has the story (along with the recently released — though heavily redacted — FISA Court ruling about the NSA lying to the court) that shows that back in 2008, the FISC had banned any such searches at the request of the Bush administration, but in 2011 the Obama administration reversed course, and asked the FISA Court to allow such backdoor warrantless searches, and the court did what it was told, issuing a ruling allowing them, despite the fact that it’s almost certainly a major 4th Amendment violation. The Obama administration’s reasoning? As noted below, a chief administration lawyer explains: “We wanted to be able to do it.” The “it” there, for clarification, is run warrantless searches on tons of communications (not just metadata) collected from Americans.

What’s a little surprising is that I’m pretty sure I called some of this back in June, the day after the first Snowden leak came out, when I pointed out that the NSA likely defines “target” not to mean just the person that they’re targeting, but rather the entire investigation. So as long as the goal of the collection was to “target” a particular non-American situation, anything can be collected, and then it can be searched at will without a warrant. Apparently, this includes somewhere on the order of 250 million communications per year.

What’s astounding is that Robert Litt, the general counsel for the Office of the Director of National Intelligence, seems kind of proud of the fact that they got this backdoor loophole:

The court in 2008 imposed a wholesale ban on such searches at the government’s request, said Alex Joel, civil liberties protection officer at the Office of the Director of National Intelligence (ODNI). The government included this restriction “to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities,” he said.

But in 2011, to more rapidly and effectively identify relevant foreign intelligence communications, “we did ask the court” to lift the ban, ODNI general counsel Robert S. Litt said in an interview. “We wanted to be able to do it,” he said, referring to the searching of Americans’ communications without a warrant.

Um. “We wanted to be able to do it” is not exactly a valid reason for violating the clear language of the 4th Amendment. I’m sure plenty of government officials “wanted to be able to do” all sorts of illegal things like throw political foes in jail for dissent, or shut down newspapers for writing things they don’t like. But we don’t allow it because the Constitution says you can’t do that.

But Litt just can’t help himself, he’s so proud of violating the 4th Amendment.

“If we’re validly targeting foreigners and we happen to collect communications of Americans, we don’t have to close our eyes to that,” Litt said. “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 duplicity here is incredible. First, they redefine “target” to allow them suck up American’s communications without a warrant, despite the fact that this is expressly prohibited. Then, to ignore the official minimization rules that bar them from looking at any communications that involve Americans, they have a court say “oh fine” and overturn a clear rule that says they can’t look at those communications, and Litt doesn’t see the problem? Most people would argue (a) the original collection was not, in fact lawful and (b) even if it was lawful to collect, over and over again for the past few months, government officials have insisted that they are careful to make sure searches on Americans don’t happen. Yet, now he nonchalantly waves off the issue as being “of course” they search that information because he thinks it’s “lawfully collected” despite being almost directly against the plain language of both the law and the Constitution? Wow.

Oh, and as a “bonus” they appear to have tossed in the ability for the NSA to keep Americans’ communications for six years, rather than five. Note, of course, that over the past few months, the NSA and its defenders have continued to trot out the five year claim, even though this ruling makes it clear that the timeline had actually been extended to six. So, yet another lie to top it all off.

And, while most of the outrage should be directed at the Obama administration, mainly in the form of Litt and James Clapper who pushed for this, some of it also should be directed at the chief judge of the FISA Court at the time, John Bates, who signed off on this “rule change.” Once again, it seems that the administration and the NSA’s defenders keep claiming one thing, and only later, as it’s pointed out that the opposite is true, do they say something like “oh, yeah, well of course we do that…”

Filed Under: 4th amendment, backdoor loophole, fisa amendments act, nsa, nsa surveillance, prism, robert litt, section 702, warrants