As Congress mulls whether or not to re-authorize the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, the Director of National Intelligence (DNI) has admitted that the government’s use of the Act has violated the constitutional rights of Americans at least one time in the past four years. The Act, passed by Congress in 2008 in the wake of revelations that the George W. Bush administration had been conducting illegal, warrantless spying on Americans for several years, allows the government to collect, inside the U.S. and without a warrant, communications of foreign persons located abroad, even if they are communicating with Americans located in the U.S. The government must, however, obtain the approval of the ultra-secret Foreign Intelligence Surveillance Court.

 

The admission of constitutional violations came in response to a letter from Senator Ron Wyden (D-Oregon), a member of the Senate Intelligence Committee who is critical of government surveillance efforts. The DNI letter, actually signed by a subordinate, also admitted that “the government’s implementation 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 letter nevertheless concludes that the government has been able to “strike an appropriate balance between national security and safeguarding privacy and civil liberties.”

 

Wyden, who opposes re-authorizing FISA without changes to better protect privacy, has pointed out that the government has refused even to state how many Americans it has spied on under FISA, actually insisting that disclosing the number would somehow violate the privacy of those Americans.

 

Recent history, when the veil of secrecy has been pulled aside, has not been comforting. For example, in 2009 the National Security Agency engaged in significant and systemic “overcollection” of Americans’ domestic communications, and according to documents from the Foreign Intelligence Surveillance Court, the FBI has repeatedly failed to abide by limits placed on surveillances that the court allowed.

 

The DNI letter admits to “at least one” violation of constitutional rights, and to “at least one” situation where the government circumvented the spirit of the FISA law, which only begs for an answer to the question: how many more than one?

-Matt Bewig

 

U.S. Admits Surveillance Violated Constitution At Least Once (by Spencer Ackerman, Wired)

Privacy Rights Violated at Least Once by U.S. Intelligence-Collection Initiative, Official Says (by Ellen Nakashima, Washington Post)

Obama Administration Stonewalls Declassification of Secret Court Rulings (by Noel Brinkerhoff and David Wallechinsky, AllGov)

Obama Fights to Retain Warrantless Wiretapping (by Matt Bewig and David Wallechinsky, AllGov)