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.
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.
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.
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.
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.
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.
Filed Under: church committee, gary hart, james clapper, jim sensenbrenner, nsa, nsa surveillance, patriot act, section 215, walter mondale
Companies: aclu
