In the wake of today’s tremendously important ruling by the District Court for the District of Columbia that bulk collection of telephone metadata violates the Fourth Amendment, it is more important than ever that Congress end this misuse of section 215 of the USA PATRIOT Act. However, Deputy Attorney General James Cole testified earlier this week before the Senate Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic phone call records, even if the USA FREEDOM ACT passes into law. That must have come as a real surprise to committee chairman Senator Patrick Leahy (D-VT) and the dozens of USA FREEDOM Act’s bipartisan co-sponsors, all of whom agree that the core purpose of the bill is to end NSA dragnet collection of Americans’ communication data.
Cole noted the reform legislation wouldn’t necessarily inhibit the NSA’s surveillance capabilities because “it’s going to depend on how the court interprets any number of the provisions that are in [the legislation].” Comments like this betray a serious problem inside the Executive Branch. The Administration and the intelligence community believe they can do whatever they want, regardless of the laws Congress passes, so long they can convince one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to agree. This isn’t the rule of law. This is a coup d’etat.
Leahy’s proposed legislation would amend section 215 of the USA PATRIOT Act to require the government to show the records it seeks are not only relevant but also material to an authorized investigation and that the target has some connection to terrorism or espionage before it can obtain those records. This latter requirement, the USA FREEDOM Act sponsors say, will “end bulk collection”.
Cole apparently disagrees. Responding to a question at yesterday’s hearing on the bill, Cole said, “Right now the interpretation of the word ‘relevant’ is a broad interpretation. Adding ‘pertinent to a foreign agent’ or ‘somebody in contact with a foreign agent’ could be another way of talking about relevance as it is right now. We’d have to see how broadly the court interprets that or how narrowly.” In other words, the FISA court might let us keep doing what we’re doing no matter what the law says and despite Congress’ intent .
All courts issue opinions about what the laws that legislatures pass mean. These opinions are called the “common law”. But common law interpretations of statutes are only legitimate if they are fair and reasonable interpretations.
The NSA has a great track record getting FISC judges to interpret even obviously narrow phrases in surprisingly broad ways. For example, Americans, including the Patriot Act’s main sponsor Representative Jim Sensenbrenner (R-WI) and a co-sponsor of the USA Freedom Act, were shocked to learn last June that the NSA used Section 215 for bulk collection of phone data (and potentially other sensitive records). Sensenbrenner said, “[i]f Congress knew what the NSA had in mind in the future immediately after 9/11, the Patriot Act never would have passed, and I never would have supported it.”
The 2004 FISC opinion authorizing the NSA’s collection and use of Internet metadata under the pen register statute is another dismaying example of this phenomenon. In this opinion, Judge Colleen Kollar-Kotelly acknowledged that she was allowing an “exceptionally broad” and “novel” form of collection, but nevertheless deferred to “the fully considered judgment of the executive branch in assessing and responding to national security threats and in determining the potential significance of intelligence-related information.” This opinion—called “strange” and a “head-scratcher”—later served as precedent upon which FISA Judge Claire Eagan relied in her 2006 authorization of the bulk phone records collection.
Time and again, the FISC accepts the Administration’s shockingly flimsy arguments. As a set, the few public FISC opinions we’ve seen suggest that the Executive Branch—in cahoots with a few selected judges—has replaced legitimate public statutes with secret, illegitimate common law.
The rule of law is a basic democratic principle meaning that all members of a society—individuals, organizations, and government officials—must obey publicly disclosed legal codes and processes. If Cole is right that, try as it might, Congress cannot end bulk collection because the secret FISA court may defer to the NSA’s interpretation of the rules, there is no rule of law. The NSA is in charge, the FISA court process is just a fig leaf, and this is no longer a democracy. There’s been a coup d’etat.
- Publication Type:Other Writing
- Publication Date:12/16/2013