Author Of Patriot Act As Well As Members Of Church Commission Tell Court NSA Has Gone Too Far
from the wow dept
Here's something I'd bet you never thought you'd see: the EFF teaming up with the author of the Patriot Act, Rep. Jim Sensenbrenner, to tell a court that the NSA is violating the Patriot Act. This is in the ACLU's lawsuit over the NSA's collection of metadata on all phone calls, which the DOJ is desperately trying to get out of. Here, Jim Sensenbrenner, with help from the EFF, has filed an amicus brief with the court, noting that the Patriot Act -- which the DOJ and NSA are relying on to claim the program is legal -- was never intended to allow this kind of activity. In fact, it was written to prevent this kind of activity.The filing notes that Sensenbrenner originally received a draft of the Patriot Act from the DOJ five days after September 11, 2001, and found that it gave the government way too much power, so he redrafted the legislation specifically to prevent widespread abuses of investigative powers.
The parties can argue over the dictionary and legal definitions of the words “relevance” and “an.” But regardless of how those words are defined, one thing is clear: amicus, and the other Members of Congress who enacted Section 215, did not intend to authorize the program at issue in this lawsuit or any program of a comparable scope.Sensenbrenner's is not the only interesting amicus brief. A diverse group of interested parties have filed their own briefs as well -- including the NRA, Reporters Committee for Freedom of the Press and the PEN American Center. But another really interesting one was filed by former members of the Church Committee, the famous committee set up in 1975 to investigate and rein in the intelligence community after it became clear that they were abusing their powers. In this case, the filing comes from Gary Hart and Walter Mondale, two members of the Church Committee who may also be remembered for later (disastrous) attempts to run for President. This brief also involves a number of well-respected law professors who have spent a lot of time on related issues.
Amicus does not dispute that “relevance” is customarily given a broad meaning, and that he and his colleagues in Congress were aware of this broad meaning when they enacted and reauthorized Section 215. Nor does amicus dispute that Section 215 was intended to create a “sufficiently flexible” standard. See Defs’ Mot. to Dismiss at 24. But there is no suggestion in any legal precedent or in any statements in the legislative history that the relevance standard could justify the ongoing collection of the records of every telephone call made to or by every person on American soil, the vast majority of which Defendants concede will not be related even remotely to any terrorist activities.
To the contrary, amicus understood that “relevance” was commonly construed by the Supreme Court as a limiting factor that specifically prevented the bulk collection of records, even on a much smaller scale, on the belief that investigators might find the information useful at some point in the future.
The full brief is well worth reading, giving the history of the Church Committee, and the FISA law which followed, and how it was designed to restrict the practices of the intelligence community and stop abuses such as widespread spying on the American public.
The government’s interpretation of “relevant” also contradicts Congress’ aim in enacting FISA. As discussed above, Congress designed the statute to be used in specific cases of foreign intelligence gathering. By limiting the targets of electronic surveillance, requiring probable cause, disallowing investigations solely on the basis of otherwise protected first amendment activities, and insisting on minimization procedures, Congress sought to restrict agencies’ ability to violate U.S. citizens’ privacy. The business records provision built on this approach, adopting the same definitions that prevailed in other portions of the statute, and requiring that agencies obtain orders to collect information on individuals believed to be foreign powers or agents of a foreign power. Congress later deliberately inserted “relevant” into the statute to ensure the continued specificity of targeted investigations.When you basically have the people who were responsible for the various laws that the NSA is now relying on arguing in court that the NSA is clearly going beyond the intent of the laws, it seems rather clear that the NSA's case is on very thin ice.
In addition, Congress empowered the FISC to consider each instance of placing an electronic wiretap. The NSA’s program, in contrast, delegates such oversight to the executive, leaving all further inquiries of the databases to the agency involved. Once the NSA collects the telephony metadata, it is the NSA (and not the FISC) that decides which queries to use, and which individuals to target within the database.
This change means that the FISC is not performing its most basic function: protecting U.S. persons from undue incursions into their privacy. Instead, it leaves the determination of whom to target to the agency’s discretion.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: church committee, gary hart, james clapper, jim sensenbrenner, nsa, nsa surveillance, patriot act, section 215, walter mondale
Companies: aclu
Reader Comments
Subscribe: RSS
View by: Time | Thread
Why we fail as a nation and electorate
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
This allows a loophole for them to continue Unconstitutionally spying on their own citizens, who are the ones funding these spy programs.
The Five Eyes coalition can simply share domestic intelligence with each other, and have the Canadians data mine US citizen's information. While the US data mines Canadian information.
Thus, each country can side-step each others regional laws. US funding the UK's GCHQ spy operations has already been disclosed. We must conclude that this plan has already been put into place, and is fully operational.
[ link to this | view in thread ]
If you would pull your size challenged garden snake out of that rabbit for a moment, you sick psychopath, and look at the hard facts that Google is the real problem and Bing is our savior you'd stop wasting everyone's time with your milk fetish!
[ link to this | view in thread ]
Re: Why we fail as a nation and electorate
From what I have seen, it takes media outlets on the fringes to give us a truly balanced approach.
[ link to this | view in thread ]
Re:
Sure, they can do that. But in order to datamine, they need a continuing source of the data. How would the Canadian/UK/Aus/NZ government force a US phone or Internet company to install monitoring systems within networks in the US?
[ link to this | view in thread ]
Mr. Sensenbrenner, if you're such an expert on laws...
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Why we fail as a nation and electorate
Why is it so hard to write a bill that says exactly what it is intended to do. I mean why write a bill that is "intended" to do something when it actually does something completely different?!
To me it sounds like the bill authors are either trying to pull a fast one on the public or they just plain can't write what they mean.
[ link to this | view in thread ]
I suppose the NSA could request it from the AT&T employee sitting in the cubical next to him.
[ link to this | view in thread ]
Re: Re: Re: Why we fail as a nation and electorate
[ link to this | view in thread ]
[ link to this | view in thread ]
After all every time someone gets up to defend this crap, they say oh, we don't do xxx, which is supposed to be a really bad thing to do, only to find out days later, yeah they do.
Everyone now gets this spying domestically needs shut down. But because all these other nations are in on it, it has to be done in such a manner we don't just shift off spying to other nations to do for us. This whole thing stinks.
This was the only reason Obama was saying maybe it needed tightening up a little. Because congress is coming back and they've heard an ear full for those few that would hold townhouse meetings. He knows it won't continue to float. But I recall Obama saying he would welcome the debate over all this and he hasn't held one to date. He had no interest beyond getting out of the hot water of the moment.
This spying domestically has to end.
[ link to this | view in thread ]
Re: Why we fail as a nation and electorate
[ link to this | view in thread ]
Vice President of the United States
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Why we fail as a nation and electorate
For example I remember when SOPA was being discussed there were a number of issues that the backers of the bill repeatedly claimed would never be abused, but at the same time they vehemently opposed any inclusions to the bill that would clearly and concisely prohibit those same actions, so in that case it was pretty obvious that they were trying to pull a fast one, rather than being unintentionally vague.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Literally
[ link to this | view in thread ]