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.

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.

5 replies
  1. wallace says:

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

    I’m not sure if you are sincere or your Samurai sword was recently sharpened but I think that one would make the Secret Service satire detection software go into meltdown.

  2. bloopie2 says:

    Will the fact that there were no backdoor searches conducted, for three years, be used by DOJ against certain plaintiffs on the ‘standing’ issue? And if they destroy the post-2011 evidence, as they have apparently been doing per the EFF case out West, is that it, then?

  3. Cujo359 says:

    What bothers me about this is that here’s another time when even the people who are watching this carefully aren’t sure what the law (or NSA’s interpretation of it) may have been. If you guys don’t know, is there anyone outside of government who does?

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