This is one of those stories that would have been sensational, had it come immediately on the heels of Edwards Snowden’s bombshell revelation about the extent of the National Security Agency’s reach into the digital lives of ordinary Americans. Instead, it’s likely to get lost in the white noise of President Barack Obama’s many second-term, Constitution-shredding scandals.
Over the weekend, The Washington Post revealed that, in 2011, the Obama Administration secretly won permission from the Foreign Intelligence Surveillance Court to overturn restrictions on the NSA’s power to search and store the digital communications of all Americans without first obtaining a warrant. FISC is the secret court whose sole purpose is to vet extraordinary surveillance requests from Federal law enforcement agencies.
Neither the 2011 reversal nor the original ban intended to limit the scope of NSA phone searches was publicized. The Post reported:
What had not been previously acknowledged is that the court in 2008 imposed an explicit ban — at the government’s request — on those kinds of searches, that officials in 2011 got the court to lift the bar and that the search authority has been used.
Together the permission to search and to keep data longer [six years instead of five] expanded the NSA’s authority in significant ways without public debate or any specific authority from Congress. The administration’s assurances rely on legalistic definitions of the term “target” that can be at odds with ordinary English usage. The enlarged authority is part of a fundamental shift in the government’s approach to surveillance: collecting first, and protecting Americans’ privacy later.
Those same powers had been explicitly blocked, at the government’s request, during the Administration of George W. Bush.
But the Obama Adminstration sought — and received — a reversal from the court. National Intelligence General Counsel Robert S. Litt told The Post the government explicitly requested the ban be dropped so that the government, which has all but forsaken spying on obvious targets (like Islamist jihadi extremists in the United States), could move quickly to intercept a domestic terror threat.