A federal court has found “at least one occasion” in which the federal government’s power to wiretap people in the U.S. without a warrant resulted in spying that was “unreasonable” under the Constitution’s Fourth Amendment bar on unreasonable search and seizure.
The Foreign Intelligence Surveillance Court’s finding was disclosed without any details in a letter today to Democratic Sen. Ron Wyden of Oregon from a top aide to Director of National Intelligence James Clapper. The letter also disclosed that the FISC, which operates in secret, concluded that the spying violated “the spirit of the law.”
The letter, which also was sent to the chairman of the Senate intelligence committee, Democrat Dianne Feinstein of California, and its ranking minority member, Georgia Republican Saxby Chambliss, says Clapper concluded “that the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.”
The disclosures provide a rare glimpse into the government’s implementation of wiretapping powers that were expanded after the Sept. 11, 2001, terrorist attacks on the U.S. and which the Obama administration has continued to use.
Wyden is threatening to block a proposed five-year extension of the law, until he and other lawmakers can get more information about whether the government is intercepting and reviewing communications of “law-abiding Americans” under a law intended to catch spies and terrorists operating on behalf of foreign powers.
On May 8, the Justice Department said in response to a public records request that no rulings by the court, which was set up under the Foreign Intelligence Surveillance Act, or FISA, had been cleared for release.
The Obama administration created a process to consider declassifying FISA court opinions starting in 2010, after lawmakers called for greater transparency. The FISA court considers government requests for electronic surveillance and physical searches of foreigners in the U.S. suspected of engaging in espionage or terrorism.
The court approved all 1,674 applications by the U.S. government to conduct electronic surveillance in 2011, according to an April 30 Justice Department report to congressional leaders.
Today’s letter to Wyden from Clapper’s director of legislative affairs, Kathleen Turner, declassified the FISA court’s finding so the senator, a leading critic of the law allowing warrantless wiretaps, could disclose it for the first time.
A spokesman for Clapper said in a telephone interview today that the Office of the Director of National Intelligence, addressed the concerns raised by the court, a point the letter stressed to Wyden. The ODNI coordinates the work of 16 U.S. intelligence agencies, including the National Security Agency, which conducts electronic surveillance.
“We’ve identified and we’ve admitted that there were some concerns, but FISC has continued to approve the collection as consistent with the statute and reasonable under the Fourth Amendment,” said Mike Birmingham, a spokesman for Clapper.
Tom Caiazza, a spokesman for Wyden, said the agency’s decision allows him to speak out about some problems in implementing the law that he’s been aware of for some time.
“We can start this transparent debate,” he said.
Wyden is scheduled to speak on the issue at the Cato Institute, a Washington policy research organization, on July 25.
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