One of the authors of the PATRIOT Act, which granted the Executive Branch of government broad powers to fight alleged terrorists after the September 11th attacks, has filed a brief in support of a lawsuit by the American Civil Liberties Union (ACLU) that aims to challenge the NSA’s massive collection of Americans’ phone records.
The lawsuit, according to the ACLU, “argues that the dragnet, justified by the PATRIOT Act’s Section 215, violates the right of privacy protected by the Fourth Amendment as well as the First Amendment rights of free speech and association.” It also argues that the “program exceeds the authority that Congress provided through the PATRIOT Act.”
In June of this year, The Guardian published a secret order from the Foreign Intelligence Surveillance Court (FISC) to Verizon that required the company to turn over the phone records of all Americans on an “ongoing daily basis.” The order was provided to The Guardian by former NSA contractor and whistleblower Edward Snowden and showed how the government was sweeping up metadata on Americans’ phone calls that could reveal “intimate details” of citizens not suspected of being engaged in any acts of terrorism whatsoever.
Republican Representative Jim Sensenbrenner of Wisconsin was one of the first members of Congress to condemn what was revealed in the secret order to Verizon and state this kind of collection of data was not what had been authorized by the PATRIOT Act.
Sensenbrenner, the author of the original PATRIOT Act, and a supporter of its revision in 2006 and reauthorizations in 2009 and 2011, asserts, in a brief the Electronic Frontier Foundation (EFF) submitted as a part of the ACLU lawsuit, that the “unprecedented, massive collection of the telecommunications data of innocent Americans” was never intended to be authorized by the PATRIOT Act.
“The unfocused dragnet” undertaken by the defendants is “exactly the type of unrestrained surveillance Congress” had “tried to prevent,” according to Sensenbrenner. (In the case, the defendants are James R. Clapper, Director of National Intelligence, Keith B. Alexander, director of the NSA, Charles T. Hagel, Secretary of Defense, Eric Holder, Attorney General, and Robert S. Mueller, FBI director.)
The ability to collect records was supposed to be “confined to the situations in which the information was relevant to an authorized investigation,” Sensenbrenner argues. The “relevancy requirement was expressly incorporated into Section 215 when the law was reauthorized in 2006.”
He further suggests the defendants have advanced a “dangerous version of ‘relevance'” that is “unprecedented.” The records are “relevant” so long as “there is reason to believe [the business records] are necessary to the application of investigative techniques that will advance its purposes.” Sensenbrenner adds that this means the defendants claim “they can collect millions of records that they know are not pertinent or related or connected to any terrorist within those five years to analyze those records to see if they contain any links to terrorists.” This is maintained “even though they concede that even third degree connections to terrorists will be found in only a minuscule subset of the records collected.”
Also, Sensenbrenner points out the Executive Branch kept its secret interpretation of the law and did not inform “more than a handful of members of Congress” of how it interpreted its authority to collect massive amounts of citizens’ data.
Sensenbrenner concludes, “The bulk data collection program is unbounded in its scope. The NSA is gathering on a daily basis the details of every call that every American makes, as well as every call made by foreigners to or from the United States. How can every call that every American makes or receives be relevant to a specific investigation?”
Along with Sensenbrenner, the National Rifle Association (NRA) and former members of the Church Committee, which sought to reign in illegal, improper and unethical intelligence activities in the 1970s, have submitted briefs in support.
The NRA argues the “involuntary disclosure of the membership of advocacy groups inhibits the exercise of First Amendment rights by those groups.”
“For nearly as long—since the debates leading up to the enactment of the Gun Control Act of 1968—the Congress has recognized that government recordkeeping on gun owners inhibits the exercise of Second Amendment rights,” the NRA argues. “The mass surveillance program raises both issues, potentially providing the government not only with the means of identifying members and others who communicate with the NRA and other advocacy groups, but also with the means of identifying gun owners without their knowledge or consent, contrary to longstanding congressional policy repeatedly reaffirmed and strengthened by Congress that enacted and reauthorized the legislation at issue in this case.”
Former Church Committee members argue the Foreign Intelligence Surveillance Act (FISA) was intended to prevent intelligence agencies from engaging in the kind of broad domestic surveillance that has been exposed over the past months. It also points out that the NSA has a “history of conducting broad surveillance programs under the guise of foreign intelligence.”
For example, the NSA composed a “list of US citizens and non-US citizens subject to surveillance” through a program operated from 1967 to 1973 known as Project MINARET. It was to focus on “international communications of US citizens traveling to Cuba” but expanded to individuals involved in “civil disturbances,” “suspected of criminal activity,” “implicated in drug activity,” “of concern to those tasked with Presidential protection” and “suspected of involvement in international terrorism.”
Then-Senator Walter Mondale declared:
Given another day and another President, another perceived risk and someone breathing hot down the neck of the military leader then in charge of the NSA: demanding a review based on another watch list, another wide sweep to determine whether some of the domestic dissent is really foreign based, my concern is whether that pressure could be resisted on the basis of the law or not . . . [W]hat we have to deal with is whether this incredibly powerful and impressive institution . . . could be used by President ‘A’ in the future to spy upon the American people. . . [W]e need to . . . very carefully define the law, spell it out so that it is clear what [the Director of the NSA’s authority is and is not].
As is evident from the briefs, it is simply impossible for the government to justify the continued operation of its dragnet surveillance program, which it has wrongfully suggested was authorized by Congress under the PATRIOT Act. And, while it had been hard to advance lawsuits of this nature previously because it was impossible to show that the surveillance apparatus was being used against Americans, that is no longer an issue. Snowden revealed to the world how the massive surveillance apparatus of the United States is routinely violating privacy by sweeping up data from the communications of Americans and others around the world, who have no connections whatsoever to terrorists.
The EFF won a Freedom of Information Act lawsuit against the Justice Department, which is now prepared to release “hundreds of documents, including FISA court opinions, related to the government secret interpretation of Section 215 of the PATRIOT Act.”
By next week, according to a post by EFF’s Trevor Timm, the Justice Department will begin to post documents, including:
[O]rders and opinions of the FISC issued from January 1, 2004, to June 6, 2011, that contain a significant legal interpretation of the government’s authority or use of its authority under Section 215; and responsive “significant documents, procedures, or legal analyses incorporated into FISC opinions or orders and treated as binding by the Department of Justice or the National Security Agency.”
The victory comes after a prior victory where EFF forced the Justice Department to release a 2011 FISA court opinion, where the court had ruled some of the NSA’s surveillance was unconstitutional.
And, finally, as Timm alludes to in the post, the administration of President Barack Obama may try to pass this release of information off as a result of it being the “most transparent administration” in the history of the United States ever. (This is what it has done since the Citizens for Responsibility and Ethics in Washington (CREW) forced the government to release White House visitor logs.)
The documents released may be heavily redacted and provide little to no information or there may be few redactions because much of how the Section 215 program is supposed to operate has been discussed openly. Either way, Snowden’s disclosures and the legal efforts of groups like the ACLU and EFF have made it harder for the administration to maintain the level of secrecy, which the national security state has historically sought to maintain.