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Senators Ron Wyden, Diane Feinstein, and Pat Roberts in an Intelligence Committee meeting.
Sens. Ron Wyden, Dianne Feinstein and Pat Roberts in an Intelligence Committee meeting. (Reuters)
The government has, on at least one occasion, violated the Constitution's Fourth Amendment prohibitions on unlawful search and seizure. That much, at least, is admitted by the Office of the Director of National Intelligence (ODNI) in a letter to Sen. Ron Wyden (D-OR). Wyden asked the ODNI to declassify three statements regarding the Foreign Intelligence Surveillance Act Amendments Act of 2008. One of those statements they have allowed him to make public is this:
“On at least one occasion,” the intelligence shop has approved Sen. Ron Wyden (D-Ore.) to say, the Foreign Intelligence Surveillance Court found that “minimization procedures” used by the government while it was collecting intelligence were “unreasonable under the Fourth Amendment.” Minimization refers to how long the government may retain the surveillance data it collects. The Fourth Amendment to the Constitution is supposed to guarantee our rights against unreasonable searches.

Wyden does not specify how extensive this “unreasonable” surveillance was; when it occurred; or how many Americans were affected by it.

The FISA Amendments Act is up for reauthorization this year, and the administration is pushing it hard. Wyden has, for well over a year, been attempting to bring to light various ways in which the government is overstepping the bounds of established law in conducting domestic surveillance. This is one more example. The ODNI says that the violation that the FISA Court found has been "remedied," but Wyden remains concerned.
In what he calls the “back door searches” loophole, Wyden says the government could gather large amounts of e-mails and phone call data, then sift through them to pinpoint the communications of individual Americans, an aide explained.

“This law clearly has had a bigger privacy impact than most people realize,’’ Wyden said Friday. “In particular, I believe that the “back door searches” loophole needs to be closed.”

The issues raised by Wyden clearly need to be debated in public, on the Senate floor and in the press. That's more than Wyden's Intelligence Committee chair, Sen. Dianne Feinstein, has been willing to do thus far on the issue. This admission from the ODNI to Wyden might help change that.

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