Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

In the Senate Judiciary Committee’s markup of the FISA Amendments Act, Mike Lee, Dick Durbin, and Chris Chris Coons just tried, unsuccessfully, to require the government to get a warrant before it searched US person communications collected via the targeting of non-US person under the FISA Amendments Act. It was, as Dianne Feinstein said, not dissimilar from an amendment Ron Wyden and Mark Udall had tried to pass when FAA was marked up before the Senate Intelligence Committee.

The debate revealed new confirmation that the government is wiretapping American citizens in the guise of foreign surveillance.

DiFi argued that the amendment would have impeded the government to pursue Nidal Hassan by delaying the time when they could have reviewed his communication (presumably with Anwar al-Awlaki). Of course, the amendment included an emergency provision that would have permitted such a search after the effect.

More telling, though, was Whitehouse’s response. He referred back to his time using warrants as a US Attorney, and said that requiring a warrant to access the US person communication would “kill this program,” and that to think warrants “fundamentally misapprehends the way in which this program operates.”

Now, I’d be more sympathetic to Whitehouse here if, back when this bill was originally argued, his amendments requiring FISC oversight of minimization after the fact had passed. They didn’t. To make things worse, though Leahy repeatedly talked about Inspector General reporting overdue on this program, Congress is not going to wait for these reports before they extend the program for another three years, at least. So Whitehouse’s assurances that we can trust minimization to protect US person privacy seems badly misplaced.

In any case, this represents an admission, as strong as any we’ve seen, that this program is entirely about collecting the US person communication of those who communicate with people (DiFi used the term “person of interest,” which I had not heard before) overseas.

Update: Updated to explain this came in a markup hearing. Thanks to Peterr for pointing out my oversight on that point.

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13 Responses to Sheldon Whitehouse Confirms FISA Amendments Act Permits Unwarranted Access to US Person Content

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JimWhiteGNV Renovation update: new sofa and loveseat arrived!
bmaz @ScottGreenfield @wolmanj @Popehat FWIW, I am fine w/this OTHER than the video. That just never looks good in hindsight. Never. #AudioOnly
bmaz @ScottGreenfield @wolmanj @Popehat And, I am betting, just one JA instead of two and a bailiff.
bmaz @ScottGreenfield @wolmanj @Popehat No, Jay is right. the judge and parties are, as far as I know, in the actual courtroom. Just no reporter
JimWhiteGNV #Gators come in with numbers 1, 3, 14 and 45. Should be a good year...
JimWhiteGNV RT @JulieDiCaro: Brennan: Hardy remains unapologetic, yet will be cheered on Sunday. Sigh via @usatoday
bmaz @wolmanj @ScottGreenfield @Popehat Been doing O/A's+trials on audiotape for decades in municipal courts w/o a recorder. It the "video"...
bmaz @ScottGreenfield @Popehat Exactly. And I even had competent hair back then. Still hated it. Total nightmare now.
bmaz @ScottGreenfield @Popehat "Excuse me video camera, can you read that back to me"? How does that work??
bmaz @ScottGreenfield @Popehat I was involved in couple of early Court TV trials. Fucking hated seeing the thing in video. Blergh.
bmaz @ScottGreenfield @Popehat How you boys feel about having your every bullshit O/A be on video in lieu of cold script?
bmaz @HoltenMark About the LAST thing in the world I want is a public video of every court argument I make. I know how to play to a transcript.