60 Days After Being Asked, James Clapper Finally Answers Ron Wyden's Question About Collecting US Citizens' Communications

from the and-it's-a-'yes;'-it's-ALWAYS-a-'yes' dept

The game of 20 questions (National Security Edition) has finally paid off, weeks after the question was asked. Ron Wyden, one of the few legislators willing to pin down (or at least attempt to -- the NATSEC reps are a slippery bunch) exactly what the NSA is up to, has received a response to one his pointed questions. (Wyden's ability to ask precisely the right question has pretty much turned any intel official's answer along the lines of "we can't discuss this publicly for national security reasons" into a de facto "yes.")

[I]n a letter to Senator Ron Wyden, an Oregon Democrat on the intelligence committee, the director of national intelligence, James Clapper, has confirmed for the first time this backdoor had been used in practice to search for data related to “US persons”.

“There have been queries, using US person identifiers, of communications lawfully acquired to obtain foreign intelligence targeting non-US persons reasonably believed to be located outside the United States,” Clapper wrote in the letter, which has been obtained by the Guardian.

“These queries were performed pursuant to minimization procedures approved by the Fisa court and consistent with the statute and the fourth amendment.”

So, there's the admission Wyden was seeking back on January 29th, but the story goes back much further than that. This is something that has been denied and obfuscated since the leaks began back in June of last year. The NSA (along with other agencies most likely) can grab American's communications without a warrant. It claims this is all legit because the agency "reasonably believes" these communications serve its foreign intelligence directive.

Clapper disingenuously points out that this was discussed during the debate over the renewal of Section 702 late last year.

“As you know, when Congress reauthorized Section 702, the proposal to restrict such queries was specifically raised and ultimately not adopted,” Clapper wrote.

Of course, no one had access to this information as Clapper and others had yet to officially acknowledge this backdoor.

But someone did know about this backdoor, and he's known about it for months: new director of the NSA, Mike Rogers.

It has taken just 9 months for Clapper to admit that, contrary to months of denials, the NSA (and FBI, which he doesn’t confirm but which the Report makes clear, as well as the CIA) can get the content of Americans’ communications without a warrant.

But Clapper’s admission that this fact was declassified in August should disqualify Vice Admiral Mike Rogers from confirmation as CyberComm head (I believe he started serving as DIRNSA head, which doesn’t require confirmation, yesterday). Because it means Rogers refused to answer a question the response to which was already declassified.

Again, the NSA, for all intents and purposes, has no oversight. Ron Wyden serves on the Senate Intelligence Committee and he's one of the few in this position who will actually attempt to extract info from closed-lipped intelligence officials. Despite his efforts, it took two months for him to obtain an answer that was declassified in August 2013. That's how the system actually works, but those defending the obfuscation artists charged with national security keep foisting their utopian dreamscape of checks and balances on the agency's many critics.

Filed Under: admiral mike rogers, backdoor loophole, james clapper, nsa, odni, ron wyden, surveillance, warrantless searches, warrants

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

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