Third Time’s Not the Charm When Asking about Warrantless Wiretapping

How many different ways does Sen. Ron Wyden (D-OR) have to ask the government the number of Americans it has spied on under its warrantless wiretapping program before he can get a straight answer? So far, it’s at least three and counting.

Wyden’s public inquiry concerning surveillance of Americans under the FISA Amendments Act (FISA) started with a letter to the Office of the Director of National Intelligence (DNI) in July 2011. The DNI told him “it is not reasonably possible to identify the number” of Americans who had been spied on.

Wyden then asked the Inspectors General for the National Security Agency (NSA) and the Intelligence Community to “determine the feasibility of estimating” the number. The NSA IG - the watchdog whose mission is to “ensure that the Agency respects Constitutional rights” - determined that “such an estimate was beyond the capacity of his office” and that “a review of the sort suggested would itself violate the privacy of U.S. persons.”

Still determined to get an answer, Wyden and a bipartisan group of 12 other senators, including Sen. Mark Udall (D-CO), who joined Wyden in previous inquiries, asked the DNI to estimate “the order of magnitude of this number.” Hoping to get any helpful response, they set the bar for specificity extremely low, and asked whether it was “closer to 100, or 100,000, or 100 million” Americans. Even when given a split of 999,999,900, the DNI told the senators that an unclassified answer was not possible. But, it did take the opportunity to scold them about questioning a “loophole” in the law that allows ‘back door searches’ of Americans’ communications, proclaiming that “in enacting these standards for collection, Congress understood that some communications of U.S. persons would be incidentally acquired.”

In addition to at least 13 senators, the ACLU, a coalition of 21 privacy and civil liberties groups, and countless Americans want to know how many of us are picked up in this massive surveillance program, before Congress reauthorizes these powers for another five years.

While we don’t know how many Americans have been spied on under FISA, or even how it is interpreted and applied, we do know the law has been abused. Wyden revealed that “on at least one occasion the Foreign Intelligence Surveillance Court [FISC] held that some [FISA] collection…was unreasonable under the Fourth Amendment,” and that FISC concluded at least once that “the government’s implementation of [FISA] circumvented the spirit of the law.”

Next week, the Senate is expected to consider its extension of FISA. Take action now to tell Congress to Fix FISA.

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