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.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

13 replies
  1. BSbafflesbrains says:

    What about people who communicate with people who communicate with people overseas? What about people who know people who communicate with people overseas?

  2. Judith says:

    The insidious fact is that they don’t only read emails to find so called terrorists, but to survielle Innocent U.S citizens who are whistleblowers, activists or anyone who reports misconduct of the State or corporations. They use emails and network to intimidate good people trying to expose the truth. Terrorism is a huge excuse/ lie to control any dissent. Be scared for as Orwell said ” that in an age of the where the state is a lie,telling the truth is a revolutionary act”

  3. klynn says:

    Why don’t we all just change our names to Kevin Bacon and be done with it. Just call the program Six Degrees.

  4. BSbafflesbrains says:

    @pdaly: Only if they are not overseas, so call them in Canada? Call forwarding could be a pandora’s box.

  5. John Thacker says:

    @pdaly: A fellow Democrat was elected President, that’s what happened to Whitehouse. True fans of civil liberties are, as always, outnumbered by the politicians who just want to use it to bash the other guys.

    There’s really no other good excuse here.

    People assure me that the minimization rules are followed, but they have to tap the communications first to find out what’s in them (so that they know that they’re US citizens.)

  6. Timbo says:

    @pdaly: What happened was that the Democrats found themselves in power. Now the Republicans are the ones “pleading” for public oversite. Makes one wonder exactly whether or not both Dems and Repubs are mostly opposite sides of the same slice of butter…

  7. Francois T says:

    What do you mean “surveille”? You think they would stop at that?

    Not quite!
    The truth is that the DOJ actively collaborate (using OUR tax dollars TYVM) with big business to do their dirty work. Said otherwise: The DOJ is becoming the enforcement arm of Big Business. Here’s a case that should’ve been national news in the US:

    But of course, given the abysmal quality of actual US mainstream journalism, that was not to happen.

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