If George Bush Can Close NSA’s Back Door Loophole, Why Can’t Barack Obama?

As per usual, there was a tidbit of news in Ron Wyden’s questions at yesterday’s hearing on the USA Freedumber.

He revealed that the back door loophole was closed during the Bush Administration.

Let me start by talking about the fact that the House bill does not ban warrantless searches for Americans’ emails. And here, particularly, I want to get into this with you, Mr. Ledgett if I might. We’re talking of course about the backdoor search loophole, section 702 of the FISA statute. This allows NSA in effect to look through this giant pile of communications that are collected under 702 and deliberately conduct warrantless searches for the communications of individual Americans.  This loophole was closed during the Bush Administration, but it was reopened in 2011, and a few months ago the Director of National Intelligence acknowledged in a letter to me that the searches are ongoing today. [my emphasis]

I’m not sure precisely what he’s talking about, though I assume either the transition from the illegal program to Protect America Act, or the transition from PAA to FISA Amendments Act, removed NSA’s ability to conduct back door searches. Reading between the redactions in John Bates’ October 3, 2011 opinion, FBI apparently has had the authority to do back door searches on both traditional FISA and warrantless collection from 2008, so from the beginning of FAA.

But from what Wyden said, the NSA had the ability to do back door searches, lost it, and now has it again.

I’d sure like to know more about what happened to lead people to believe NSA should have that authority taken away from it.

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5 Responses to If George Bush Can Close NSA’s Back Door Loophole, Why Can’t Barack Obama?

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Emptywheel Twitterverse
bmaz @WerlySportsLaw Absolutely agree. Though want it by natural pressure, not federal govt insertion into the issue in face of 1st Amendment
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JimWhiteGNV RT @VanessaBeeley: Rinse and repeat: 82 new US-trained Syrians prepare for fighting — RT Op-Edge https://t.co/bLREm1zfv4 @snarwani @navsteva
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bmaz @Prof_Holland @TAMULawSchool Yes, now send them to represent some indigent defendants, whether at trial or appellate level...or both!
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bmaz @WerlySportsLaw So, change the name and waive RGIII? Frankly, think Snyder too bullheaded and stupid to do either one.
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bmaz This is most common when county attys overcharge+overreach with sex crime defendants b/c they can. Usually cravenly works, sometimes not.
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bmaz @WALLACHLEGAL Agreed! All good anyway, and many would not know Clune's longer history (I may be getting old...).
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bmaz The Labrie/NH sex asslttrial produced a weird but not uncommon inconsistent verdict. Will be interesting to see how state ct judge sentences
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bmaz @WALLACHLEGAL And really, I have long known him from that and §1983 cases. It was a smaller group of us who did that at one time.
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bmaz @WALLACHLEGAL Hey, where did that other tweet go?!?! Anyway, just carping b/c Clune has done some great crim defense trial work
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bmaz @WALLACHLEGAL @RachelAxon Jeez, went through this yesterday - Clune far more than a Title IX+Winston accuser atty. Long time great litigator
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bmaz Texas, boy I don't know https://t.co/hqmv8s6XTk
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emptywheel @TimothyS Whatever the answer is it must be something extraordinary bc terrorterrorterror even if it makes more terrorterrorterror.
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