U.S. government admits surveillance breached 4th Amendment ‘on at least one occasion’

• A recent unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment. 
• It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government as unreasonable under the Fourth Amendment.
• I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

The section mentioned in all three points was passed in 2008 in order to legalize the warrantless surveillance program under the Bush administration.

This law permits surveillance of communications of supposedly “non-U.S. persons” when all that is required is that one party in the conversation – be it phone call or digital communication of some kind – is “reasonably believed” to be located outside the U.S.

After 2008 the requirements for the authorizations became much less stringent as well, with government officials no longer having to even specify who exactly was being spied on. The only requirement was a supposed “significant purpose” for the surveillance, namely, gathering “foreign intelligence.”

Unsurprisingly, the DNI does not agree with Wyden’s conclusion that the surveillance program “has sometimes circumvented the spirit of the law.” Personally, I think this is an understatement. To claim that it only violates the spirit of the law “sometimes” is far from adequate in my opinion.

That being said, I’m not going to complain about one of our representatives – who more often than not represent their financiers and not their constituents – actually speaking out on behalf of the American people.

While the Office of the Director of National Intelligence does not agree with the spirit of the law remark, they did not take issue with the statement regarding the FISA Court finding the surveillance in violation of the Fourth Amendment on at least one occasion.

As Danger Room correctly points out, these statements are diametrically opposed to the claims actually made by the Director of National Intelligence himself, James Clapper.

In writing Congress, Clapper claimed that the new FISA law “allows the Intelligence Community to collect vital information about international terrorists and other important targets overseas while providing robust protection for the civil liberties and privacy of Americans.”

Sounds great, right? Well keep in mind this is the same James Clapper who claimed earlier this year that Iran might “conduct an attack in the United States.”

While the Justice Department claimed in 2009 that they resolved the problem with “’overcollection’ of domestic communications of Americans,” there is little we actually have access to in terms of records of the government’s implementation of this law.

As the American Civil Liberties Union (ACLU) noted in a letter to Senator Dianne Feinstein and Senator Saxby Chambliss:

There is little in the public record about how the government implements the FAA [FISA Amendments Act of 2008], but what little there is reveals substantial violations of the law.

Interestingly, thanks to a Freedom of Information Act (FOIA) request from the ACLU, it was discovered that the Justice Department and others refer to so-called “compliance incidents” in their internal documents dealing with this surveillance program.

Spencer Ackerman writes for Danger Room that this “seemed to suggest difficulty staying within the broadened boundaries of the law.”

If the government couldn’t manage to follow the expanded version of the already indefensible law, I can’t begin to imagine how much they violated the earlier version.

Wyden pointed out that the government did not fully disclose how wide their new surveillance powers actually would be, and was able to stall the renewal of the surveillance powers in the Senate.

However, in response, the government claimed that it is “not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the [FISA Amendments Act].”

Similarly as Danger Room reported, the National Security Agency (NSA) actually claimed that computing how many people had been monitored under the new law would violate the privacy of Americans.

Clearly, the biggest issue at the forefront of the NSA’s collective mind is the sanctity of the privacy of Americans.

In the letter to Wyden, the Director of Legislative Affairs Kathleen Turner claimed that, “At no time have these reviews [of how FAA authorities are being implemented] found any intentional violations of law.”

Well, I guess as it’s not intentional and they respect our privacy, it’s all fine and dandy, right? Who needs that silly, outdated Constitution and all those stupid rights anyways?

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