The court in 2008 imposed a wholesale ban on such searches at the government's request, said Alex Joel, civil liberties protection officer at ODNI. He told the Post the government included this restriction "to remain consistent with NSA policies and procedures that NSA applied to other authorized collection activities."
But in 2011, "we did ask the court" to lift the ban to more rapidly and effectively identify relevant foreign intelligence communications, ODNI general counsel Robert S. Litt said. "We wanted to be able to do it," he said, referring to the searching of Americans' communications without a warrant.
Joel said the authority would be needed in certain situations, such as when the NSA learns of a rapidly developing terrorist plot and suspects that a U.S. person may be a conspirator. Searching for communications to, from or about that person can help assess that person's involvement and whether he is in touch with terrorists who are surveillance targets, he said.
A pair of Democratic senators, Ron Wyden of Oregon and Mark Udall of Colorado, warned last year the administration had a "back-door search loophole" that enabled the NSA to scour intercepted communications for those of Americans. They introduced legislation to require a warrant, but could not disclose the court's authorization or whether the NSA was already conducting such searches under classification rules.
The searches take place under a surveillance program Congress authorized in 2008 under the Foreign Intelligence Surveillance Act. Under that law, the target must be a foreigner "reasonably believed" to be outside the United States, and the court must approve the targeting procedures in an order good for one year.
But some are concerned that a warrant for each target would no longer be required. That means communications with Americans could be picked up without a court first determining that there is probable cause that the people they were talking to were terrorists, spies or "foreign powers."
Udall told the Post that is why it is important to require a warrant before searching for Americans' data, adding, "Our founders laid out a roadmap where Americans' privacy rights are protected before their communications are seized or searched not after the fact."