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Charlie Savage of the New York Times reports:

WASHINGTON — United States intelligence analysts have searched for Americans’ emails and phone calls within the repository of communications that the government collects without a warrant, according to a letter from James R. Clapper Jr., the director of national intelligence, to Senator Ron Wyden, Democrat of Oregon.

The March 28 letter was not the first official confirmation that both the National Security Agency and the C.I.A. had carried out such searches. But its release served to elevate attention to the fact that the activity, which Mr. Wyden has criticized as a “backdoor search” loophole to warrant requirements, was not just theoretical.

More below the orange pig-in-a-blanket.

Clapper's letter to Wyden is short and plain. Here is the important paragraph:

As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702. which we declassified and released on August 21, 2013. there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA. These queries were performed pursuant to minimization procedures approved by the FISA Court as consistent with the statute and the Fourth Amendment. As you know, when Congress reauthorized Section 702, the proposal to restrict such queries was specifically raised and ultimately not adopted.
In response to this letter, Senators Wyden and Tom Udall (D-NM) issued a joint statement:
"It is now clear to the public that the list of ongoing intrusive surveillance practices by the NSA includes not only bulk collection of Americans' phone records, but also warrantless searches of the content of Americans' personal communications,"* Wyden and Udall said. "This is unacceptable. It raises serious constitutional questions, and poses a real threat to the privacy rights of law-abiding Americans. If a government agency thinks that a particular American is engaged in terrorism or espionage, the Fourth Amendment requires that the government secure a warrant or emergency authorization before monitoring his or her communications. This fact should be beyond dispute.

"Senior officials have sometimes suggested that government agencies do not deliberately read Americans’ emails, monitor their online activity or listen to their phone calls without a warrant. However, the facts show that those suggestions were misleading, and that intelligence agencies have indeed conducted warrantless searches for Americans’ communications using the 'back-door search' loophole in section 702 of the Foreign Intelligence Surveillance Act. Today’s admission by the Director of National Intelligence is further proof that meaningful surveillance reform must include closing the back-door searches loophole and requiring the intelligence community to show probable cause before deliberately searching through data collected under section 702 to find the communications of individual Americans."

As Senators Wyden and Udall point out, not only did these warrantless searches occur, but NSA officials have obviously been misleading Congress and the American public with their assurances that such searches would not take place without a warrant.

Will Clapper's admission provide more impetus for NSA reform in Congress? I think that has a lot to do with us and how much noise we continue to raise about this issue.

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Comment Preferences

  •  Tip Jar (37+ / 0-)

    "As the madmen play on words, and make us all dance to their song / to the tune of starving millions, to make a better kind of gun..." -- Iron Maiden

    by Lost Left Coaster on Wed Apr 02, 2014 at 04:41:23 AM PDT

  •  The import of Clapper's letter is that Congress (3+ / 0-)
    Recommended by:
    elwior, wasatch, glitterscale

    said they could do it and, when it was proposed that they be restricted, the Congress failed to put restrictions into the law.

    So, it's Congress' fault. Which is true by virtue of the fact that Congress has paid for all this data collection and analysis and storage without objection. Indeed, Feinstein bragged about giving more money than was suggested by the President.

    HOWEVER, the logic underlying this explanation is flawed. It presumes that agents of government are authorized to do whatever they want and/or consider useful, unless the Congress prohibits it. That's not how the law is supposed to work for agents of government. It is true for private individuals that they can do what they want, unless there is a statute to prohibit it. Agents of government are expected to behave differently. It's why we pay them. Agents of government are tasked with doing what they are told and only that, nothing else. It's a permissivie system. If it were strictly followed, agents of government could not spy because spying is not an activity authorized by the Constitution.
    In a sense, the Amendments to the Constitution did us an injury because they introduced the notion that agents of government are under some prohibitions, instead of just directives and positive obligations, and that negative perspective has been expanded to be more comprehensive. So that, under the rubric of "protecting the nation" our agents of government now argue that everything is permitted, if it is not specifically excluded from their tool box. That is, they presume they can do whatever they want or think needful, if we haven't ruled it out of bounds. That is, they've adopted the same standard as governs individual behavior, ignoring the obvious danger of letting entities with legal access to lethal weapons behave that way.
    Our agents of government are supposed to be limited ahead of time by specific authorizations and conditions just because they are empowered, from time to time, to deploy lethal force. We keep them locked up so they won't go off half-cocked.
    Clapper is arguing for the equivalent of open carry.
    That agents of government resent the limitations placed on them by the Constitution is understandable. However, that's what they get paid for. They get paid to do just what they are told and nothing more. Agents of government are not free. They do not get to decide what's right and wrong.

    http://hannah.smith-family.com

    by hannah on Wed Apr 02, 2014 at 05:11:27 AM PDT

    •  You're seriously contorting this story, IMHO... (14+ / 0-)

      ...the "importance" of Clapper's letter is that he's been caught in his biggest public lie, yet.

      There's the "declassified narrative" (which this is); and, there's the "classified narrative," to which we're not privy.

      The fact of the matter is that the NSA has another 4 or 5 ways in which to circumvent these laws and continue their surveillance dragnet(s). Add the FBI, and other federal law enforcement and local law enforcement entities to the mix--those that are also engaging in warrantless surveillance, including 1 million-plus cell wiretaps, pen register and track and trace requests of the telcos per year over the past few years, on top of everything the NSA's already doing--and the surveillance state is front and center for all to see.

      Wyden, et al, were hamstrung, in terms of what they could discuss in public/in the press. (They tried to do this last August, when folks like Marcy Wheeler called Clapper out on his bullshit.)

      To comment about this without looking deeper, at the analysis provided by Wheeler, etc., is to attempt to discuss this bullsh*t narrative without even having HALF the pertinent facts.

      Yes, it's up to Congress to clamp down on this; but, that's made 1,000 times more difficult when you have an Executive Branch that's not about to relinquish its powers in this issue!

      "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

      by bobswern on Wed Apr 02, 2014 at 06:05:22 AM PDT

      [ Parent ]

      •  If Clapper is "Change" then Fox is a news network (7+ / 0-)

        It's hard to understand why he was appointed to this position in the first place, and it is even harder to understand why he still has it.  These pledges of transparency are utterly foreign to him:

        Government should be transparent.  Transparency promotes accountability and provides information for citizens about what their Government is doing.  Information maintained by the Federal Government is a national asset. My Administration will take appropriate action, consistent with law and policy, to disclose information rapidly in forms that the public can readily find and use. Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public. Executive departments and agencies should also solicit public feedback to identify information of greatest use to the public.

        Some men see things as they are and ask why. I dream of things that never were and ask why not?

        by RFK Lives on Wed Apr 02, 2014 at 06:57:29 AM PDT

        [ Parent ]

        •  "transparency" is a cop-out, a euphemism to (1+ / 0-)
          Recommended by:
          elwior

          disguise that the real rquirement (open records and public inspection) is not being complied with.

          When something is transparent, one can look through it, even through a glass darkly, but not AT it. To look at or look inside is different. It's what the opponents of open government and the proponents of secrecy want to prevent.

          http://hannah.smith-family.com

          by hannah on Wed Apr 02, 2014 at 07:25:50 AM PDT

          [ Parent ]

      •  Congress is the culprit. They authorized and (2+ / 0-)
        Recommended by:
        elwior, wasatch

        paid for the spying, gave oversight to a toothless court and refused to provide supervision themselves.
        Congress agreed to limit review to the Gang of Eight and call that due dilligence.
        As long as Clapper is following the law and legal advice, there is no recourse but to dismiss him. But, the next person in the office will be in the same position, unless the law making body changes the law.
        It's easy to castigate the person in an office, which is exactly why some career personnel are protected from being arbitrarily fired.
        Don't shoot the messenger.
        And don't believe what you want to hear and disbelieve what you don't want to hear.

        http://hannah.smith-family.com

        by hannah on Wed Apr 02, 2014 at 07:22:10 AM PDT

        [ Parent ]

    •  Geez (7+ / 0-)

      Most of us quit trying the "But you didn't say I couldn't eat all the cookies!" excuse at age six or thereabouts.

      On the Internet, nobody knows if you're a dog... but everybody knows if you're a jackass.

      by stevemb on Wed Apr 02, 2014 at 06:19:32 AM PDT

      [ Parent ]

      •  Exactly, there's a lot of juvenile behavior going (1+ / 0-)
        Recommended by:
        elwior

        round.
        There's widespread agreement that our Con politicians (lawmakers) are incompetent. Why should we expect the legislation they vote on to have substance?
        Most of them are trying to get away with something, if only to have authority without having earned it.
        What have most of them got but the gift of gab, the ability to parrot what some staff person tells them?

        http://hannah.smith-family.com

        by hannah on Wed Apr 02, 2014 at 07:30:15 AM PDT

        [ Parent ]

  •  Guardian's done a better job with this story... (9+ / 0-)

    ...than the NYT...

    NSA performed warrantless searches on Americans' calls and emails – Clapper

    •    NSA used 'back door' to search Americans' communications
    •    Director of national intelligence confirms use of new legal rule
    •    Data collected under 'Prism' and 'Upstream' programs

    Spencer Ackerman in Washington and James Ball in New York
    The Guardian, Tuesday 1 April 2014 16.17 EDT

    US intelligence chiefs have confirmed that the National Security Agency has used a "back door" in surveillance law to perform warrantless searches on Americans’ communications.

    The NSA's collection programs are ostensibly targeted at foreigners, but in August the Guardian revealed a secret rule change allowing NSA analysts to search for Americans' details within the databases…

    The Guardian article continues on to reference the letter linked in Marcy Wheeler’s excerpt, above.
    … Clapper, has confirmed for the first time the use of this legal authority to search for data related to “US persons”…

    …The legal authority to perform the searches, revealed in top-secret NSA documents provided to the Guardian by Edward Snowden, was denounced by Wyden as a “backdoor search loophole.”

    Many of the NSA's most controversial programs collect information under the law affected by the so-called loophole…

    …Clapper did not disclose how many warrantless searches had been performed by the NSA.

    Confirmation that the NSA has searched for Americans’ communications in its phone call and email databases complicates President Barack Obama’s initial defenses of the broad surveillance in June…

    …Initially, NSA rules on such data prevented the databases being searched for any details relating to "US persons" – that is, citizens or residents of the US. However, in October 2011 the Fisa court approved new procedures which allowed the agency to search for US person data, a revelation contained in documents revealed by Snowden…

    "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

    by bobswern on Wed Apr 02, 2014 at 06:07:30 AM PDT

    •  Please ignore the "Marcy Wheeler" reference... (2+ / 0-)
      Recommended by:
      blueoasis, elwior

      ...in this comment. (Copied something from a post at another blog, and forgot to delete this.)

      "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

      by bobswern on Wed Apr 02, 2014 at 06:17:23 AM PDT

      [ Parent ]

      •  A "back door" search is, essentially... (6+ / 0-)
        Recommended by:
        blueoasis, elwior, quill, JesseCW, wasatch, jbob

        ...the NSA hacking into a telco/telecomm/Internet providers systems. In some cases, this is done with the knowledge of some folks at these entities; in other cases, not. (But, it's supposedly with the blessing of the Executive Branch. And, there are still MANY executive orders/DoJ memos that we haven't seen on this. Not to mention certain, still-classified FISA Court decisions.)

        For the NSA to acknowledge ANY of this--and "this" is still very little--while confirming one of their biggest lies and obfuscations yet, in public, is "the story." (Key pundits have been telling us this--what Clapper's just acknowledged--since last August!)

        "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

        by bobswern on Wed Apr 02, 2014 at 06:26:05 AM PDT

        [ Parent ]

  •  Tom Udall (4+ / 0-)

    is a Democrat Senator from NEW MEXICO, not Colorado.  Please correct.  Otherwise, fine diary.

    If you acknowledge it, you can change it.

    by Raggedy Ann on Wed Apr 02, 2014 at 06:53:38 AM PDT

  •  As long as none of those emails were sent by (4+ / 0-)
    Recommended by:
    elwior, quill, JesseCW, wasatch

    Feinstein or her staff, it's all good. Otherwise, there could be hell to pay.

    I wonder why I never hear Wyden's name mentioned as a possible Presidential candidate.

    Does anybody know the name for the form of government where the people just accept what it does because there really is no other choice? Except for a few dissenters and people like Wyden and what they say goes in one ear and out the other. What form of government is that?

    There is no existence without doubt.

    by Mark Lippman on Wed Apr 02, 2014 at 07:03:34 AM PDT

  •  At this point we should be creating the short list (2+ / 0-)
    Recommended by:
    elwior, wasatch

    That would be the list of ways which the NSA doesn't spy on innocent civilians.

    I've tried austerity, and I don't think it works worth a damm. If filthy rich Oligarchs insist it's the answer, they can try and prove it to me by example.

    by thenekkidtruth on Wed Apr 02, 2014 at 07:22:29 AM PDT

    •  At this point (2+ / 0-)
      Recommended by:
      River Rover, elwior

      Clapper, Keith Alexander, and every one of their underlings ought to be gazing out at the world from behind bars.  Every person in both this and the previous administrations who signed off on this and every Congress person who voted for it should be in the cells next to them.  Also, all the Wall Street bankers and industry titans who were complicit.  They all need to go to super max for life.

      •  If these people ever receive their due it won't (1+ / 0-)
        Recommended by:
        elwior

        be because of the rule of law, they are destroying that.  They will suffer the justice of the mob they left without law.

        Their names are known and they will be safe only so long as they pay their bodyguards.

        Rivers are horses and kayaks are their saddles

        by River Rover on Wed Apr 02, 2014 at 07:50:31 AM PDT

        [ Parent ]

  •  Clapper and the Gestapo Legacy (0+ / 0-)

    These revelations should not surprise anyone since Clappers organization's major premise is one of deceit. And, since it was founded by members of the Gestapo, who were purposely smuggled out of Germany when hostilities ceased in 1945 so that they could assist in the creation of this organization, as well as that of the CIA, the ramifications of these actions should come as no surprise.

  •  Thanks for posting this (0+ / 0-)

    Clapper's letter to Wyden goes back to a hearing I diaried in Clapper Fingers Snowden & "Accomplices" at Intelligence Hearing which quotes from testimony the questions Clapper is responding to.

    Makes interesting reading for several reasons.

    No one is coming to save us, the future is in our hands.

    by koNko on Thu Apr 03, 2014 at 05:13:08 AM PDT

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