FISA Court Pretends Every Member Of Congress Was Told Details Of Bulk Surveillance, Even Though They Weren't

from the oops dept

So we already wrote about the declassification of the latest FISA Court ruling giving the giant rubber stamp of approval to the bulk records collection, under Section 215 of the Patriot Act, of metadata on every single phone call, but I wanted to highlight one other section in the ruling which the FISC uses to justify its approval of the order. Part of the FISC's explanation is that Congress explicitly approved this type of activity. The FISC notes that Congress reauthorized this program in 2011, even knowing specifically that it was used to justify bulk metadata collection on all phone calls. The FISC points out that while national security programs may have details kept secret from Congress, that wasn't the case here:

Admittedly, in the national security context where legal decisions are classified by the Executive Branch and, therefore, normally not widely available to Members of Congress for scrutiny, one could imagine that such a presumption would be easily overcome. However, despite the highly-classified nature of the program and this Court's orders, that is not the case here.

It goes on to explain that every member of Congress had access to a detailed explanation of the program and then voted to renew it.

Prior to the May 2011 congressional votes on Section 215 re-authorization, the Executive Branch provided the Intelligence Committees of both houses of Congress with letters which contained a "Report on the National Security Agency's Bulk Collection Programs for USA PATRIOT Act Reauthorization" (Report). Ex. 3 (Letter to Hon. Mike Rogers, Chairman, and Hon. C.A. Dutch Ruppersberger, Ranking Minority Member, Permanent Select Committee on Intelligence, U.S. House of Representatives (HPSCI), from Ronald Weich, Asst. Attorney General (Feb. 2, 2011) (HPSCI Letter); and, Letter to Hon. Dianne Feinstein, Chairman, and Hon. Saxby Chambliss, Vice Chairman, Select Committee on Intelligence, U.S. Senate (SSCI), from Ronald Weich, Asst. Attorney General (Feb. 2, 2011) (SSCI Letter)). The Report provided extensive and detailed information to the Committees regarding the nature and scope of this Court's approval of the implementation of Section 215 concerning bulk telephone metadata." The Report noted that "[a]lthough these programs have been briefed to the Intelligence and Judiciary Committees, it is important that other Members of Congress have access to information about th[is]... program[] when considering reauthorization of the expiring PATRIOT Act provisions." Furthermore, the government stated the following in the HPSCI and SSCI Letters: "We believe that making this document available to all Members of Congress is an effective way to inform the legislative debate about reauthorization of Section 215...." .... It is clear from the letters that the Report would be made available to all Members of Congress and that HPSCI, SSCI, and Executive Branch staff would also be made available to answer any questions from Members of Congress....

In light of the importance of the national security programs that were set to expire, the Executive Branch and relevant congressional committees worked together to ensure that each Member of Congress knew or had the opportunity to know how Section 215 was being implemented under this Court's Documentation and personnel were also made available to afford each Member full knowledge of the scope of the implementation of Section 215 and of the underlying legal interpretation.

That sounds good. Too bad it's not true. Well, the first part is true. Ronald Weich did send such a letter to Feinstein and Rogers, telling them to please make the information available to Congress prior to the vote to reauthorize this part of the Patriot Act. But... Mike Rogers did not share those details with members of the House despite being urged to do so. Furthermore, as was noted earlier, the White House was fully aware that Rogers chose not to share this information with those voting to renew Section 215 of the Patriot Act.

So the entire basis of the FISC's ruling here, that Congress must have intended Section 215 to be read this way because all members of Congress had that info available and still voted to approve the program is simply untrue. In a footnote in this section, the FISC hints at the fact that it actually knows Rogers didn't make this report available. Because it highlights how it is aware of both Feinstein and Rogers actually making the report available a year earlier, and then just assumes they did so again prior to the 2011 vote. So either the FISC is making a really bad assumption here, or it knows that Rogers didn't inform his colleagues, and the FISC is hoping no one notices.

Filed Under: bulk data collection, congress, fisa, fisa court, fisc, mike rogers, patriot act, section 215