FISA Court Waited Until After Snowden Leaks To Actually Explore If Bulk Phone Record Collection Was Legal

from the well-look-at-that dept

One of the most common defenses of the NSA's bulk phone record collection (in which they get access to the record of basically every phone call in the US) is that the program has been reviewed and reapproved by the FISA Court every few months. Especially after the ruling by Judge Richard Leon calling the program unconstitutional, defenders of the program kept insisting that "every other judge" who reviewed the program had found it legal, with basically all of those other judges being the FISA court. Just yesterday, for example, Attorney General Eric Holder claimed that "at least 15 judges on about 35 occasions have said that the program itself is legal."

Except... that's not actually true. We already wrote about yesterday's release of the PCLOB's scathing report on how the program was both illegal and unconstitutional, but wanted to highlight one key point from early in the report, in which the PCLOB notes that the FISC never even bothered to look at whether or not the program was really legal until after it hit the press when Snowden leaked the details to Glenn Greenwald and Laura Poitras.
The Section 215 telephone records program has its roots in counterterrorism efforts that originated in the immediate aftermath of the September 11 attacks. The NSA began collecting telephone metadata in bulk as one part of what became known as the President’s Surveillance Program. From late 2001 through early 2006, the NSA collected bulk telephony metadata based upon presidential authorizations issued every thirty to forty-five days. In May 2006, the FISC first granted an application by the government to conduct the telephone records program under Section 215. The government’s application relied heavily on the reasoning of a 2004 FISA court opinion and order approving the bulk collection of Internet metadata under a different provision of FISA.

On June 5, 2013, the British newspaper The Guardian published an article based on unauthorized disclosures of classified documents by Edward Snowden, a contractor for the NSA, which revealed the telephone records program to the public. On August 29, 2013, FISC Judge Claire Eagan issued an opinion explaining the court’s rationale for approving the Section 215 telephone records program. Although prior authorizations of the program had been accompanied by detailed orders outlining applicable rules and minimization procedures, this was the first judicial opinion explaining the FISA court’s legal reasoning in authorizing the bulk records collection. The Section 215 program was reauthorized most recently by the FISC on January 3, 2014.
We had noted earlier this week that the NSA had relied heavily on that 2004 opinion by Judge Colleen Kollar-Kotelly, which was not about the Section 215 program, but rather a different program to collect internet metadata (since discontinued). What many had suspected, but was not clearly stated until now, was that the FISA Court didn't actually bother to do any real analysis of the phone bulk collection data program until after it became public.

It was pretty clear when Judge Eagan's ruling was released in September, that it was written for a post-Snowden world, in which the FISC actually had to explain its bizarre contortionist explanation for how collecting every phone record could possibly be legal or Constitutional. But what wasn't quite known was that this was the first time a FISC judge had ever really bothered to look closely at the issue -- seven years after starting to reapprove the program, with no analysis at all, every three months.

So this idea that the program was approved by 15 judges on 35 occasions is not even close to accurate. What seems clear is that FISC judges more or less let this issue slide for seven years, assuming (based on nothing) that because of Judge Kollar-Kotelly's (already immensely troubling) ruling concerning internet metadata, involving a different authority, that the bulk phone records collection must also be legal under Section 215. It was only over the summer that Judge Eagan was given the unenviable task of trying to come up with an opinion to justify all of that in retrospect, which explains why the reasoning in the opinion was so laughable and easily poked full of holes by nearly everyone who looked at it -- including those more inclined to support the program.

Either way, it's fairly shocking that FISC basically didn't bother to explore the legal issue at all until called on it. It also shows (1) why what Snowden did was so important and (2) why having an adversarial process in place is also important.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    jackn, Jan 24th, 2014 @ 11:01am

    so Snowden is a hero?

     

    reply to this | link to this | view in thread ]

  2. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Jan 24th, 2014 @ 11:16am

    "why having an adversarial process in place is also important"

    One of the major flaws with the former US of A system is that "laws" are presumed Constitutional until someone (with standing and money) successfully gets through the legal minefields and the courts can't find any way to wiggle out of the obvious. All laws out of Congress should be reviewed by Supreme Court (and similarly at state level) before going into effect, besides that everyone signing the bill should be forced to swear that has read all of it and believes it fully Constitutional to last detail, and upon penalty of life in jail at hard labor. High time that our servants are reminded that they're servants.

    Anyway, I perform an adversary function for Mike, keep him from wandering off into academic fantasies and from TOO openly advocating theft of copyrighted content. You're welcome.

    Economics is the non-science of flattering plutocrats with lies of how their greed is actually good for laborers.

    07:15:03[i-226-3]

     

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  3.  
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    Anonymous Coward, Jan 24th, 2014 @ 11:29am

    well of course they did! they were/are as guilty as the NSA and the government for allowing this to happen, even going as far as rubber stamping to allow the surveillance etc to go unchecked, in case there was too much work and they couldn't do the job properly! a fucking idiot could have done as much work as those ass hats in checking what the NSA was up to. their total lack of interest in DOING THEIR JOB should put them on the same head chopping block as those from the agency itself! piss poor behavior from a group of people who are supposed to ensure that what the government and it's security forces were doing was legal but actually did NOTHING except get the agreeing done and back to feet up. what a fucking joke!!

     

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  4.  
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    Anonymous Coward, Jan 24th, 2014 @ 11:45am

    And they had the NERVE to ask why we're questioning them?!

     

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  5.  
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    That One Guy (profile), Jan 24th, 2014 @ 11:57am

    So never even bother to check to make sure the programs they were green-lighting were legal or constitutional, based entire on one judge's ruling years back, that covered an entirely different program and agency... and they're honestly surprised people call them what they are, a rubber stamp 'court'?

     

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  6.  
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    Anonymous Coward, Jan 24th, 2014 @ 12:11pm

    Once again you find that you can not believe any of those carrying water for the NSA as well as the NSA itself. There is no legal basis for this. The NSA's authority is not within the interior of the US but outside of it.

    Now that the authorities have been called on it where they can no longer hide it, every excuse brought up is full of holes, incomplete, usually a total misdirection when it isn't a total lie, and none of it makes sense when you compare the history to what is said.

    The FISA court has been again shown to be what the judges overseeing it claimed it not to be, that is a rubber stamp court. What we need isn't an adversarial process, what we do need is the elimination of a secret court making secret laws that the public can not know what is.

     

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  7.  
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    ChurchHatesTucker (profile), Jan 24th, 2014 @ 12:32pm

    Schrödinger's Constitutionality

    It's neither legal nor illegal until it is examined. Clearly.

     

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  8.  
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    Coyne Tibbets (profile), Jan 24th, 2014 @ 12:35pm

    Retreating Yet Again...

    "Oops: We meant that 15 judges would have found the program constitutional, if we'd mentioned it to them on 35 occasions."

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Jan 24th, 2014 @ 1:14pm

    "Attorney General Eric Holder claimed that "at least 15 judges on about 35 occasions have said that the program itself is legal." "

    Any time they point to an 'occasion' but can't tell you what they are, you should know that they are full of shit.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Jan 24th, 2014 @ 1:48pm

    Re: "why having an adversarial process in place is also important"

    You live in a fantasy world.

     

    reply to this | link to this | view in thread ]

  11.  
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    Eponymous Coward, Jan 24th, 2014 @ 1:50pm

    Well that explains it!

    FISC must mean Federal Issued Stamp of Caoutchouc (aka rubber stamp)...

     

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  12.  
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    krolork (profile), Jan 24th, 2014 @ 2:22pm

    We need a revolution.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Jan 24th, 2014 @ 3:19pm

    The government motto has always been, "It is only illegal if you get caught."

     

    reply to this | link to this | view in thread ]

  14.  
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    AricTheRed (profile), Jan 24th, 2014 @ 4:34pm

    But... But... TERRORISTS!!!

    Oh wait it is just our Government, never mind they are here to help.

     

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  15.  
    identicon
    Anonymous Coward, Jan 24th, 2014 @ 4:39pm

    Full Definition of TRAITOR
    1
    : one who betrays another's trust or is false to an obligation or duty
    2
    : one who commits treason

    http://www.merriam-webster.com/dictionary/traitor

     

    reply to this | link to this | view in thread ]

  16.  
    identicon
    sam, Jan 24th, 2014 @ 7:26pm

    Like one guy before, the NSA went way off and with no Plan B. Then, Stalingrad (aka Ed Snowden) happened. It didn't end nice for the guy on a mission to protect the World from Evil.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Jan 24th, 2014 @ 8:05pm

    Re: "why having an adversarial process in place is also important"

    If that's the case, I will perform an adversary function for you to make you go away and stop your hollering about how Tim hates cops and Mark's a pirate. You are an idiot. Get out. Nobody likes you.
    You're welcome.

     

    reply to this | link to this | view in thread ]

  18.  
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    ysth (profile), Jan 26th, 2014 @ 12:07am

    not shocking at all

    The US court system is adversarial; it depends on the opposing sides to do the grunt work and judges the results.

    Because FISC is an exception, it is broken. But this should be no surprise.

     

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  19.  
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    Anonymous Coward, Jan 26th, 2014 @ 6:23am

    The reason the Secret Court waited so long, is because they never expected anyone to be able to "prove standing" to be able to challenge these laws. Then Mr. Snowden came along and changed all that.

    Thank you Ed.

     

    reply to this | link to this | view in thread ]

  20.  
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    antymat, Jan 26th, 2014 @ 6:23am

    They at the FISA court...

    were not rubber-stamping it at all. They are just very trusting. They trust NSA when they say they are not doing anything wrong. They trust the government. They trust each other. They'd rather not check - this would be rude - such an obvious display of distrust. Hey, they're just very nice people. Test it: I am sure when you tell them you will absolutely, absolutely pay them back this $1000000 loan, they'd trust you, too!

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Lurker Keith, Jan 26th, 2014 @ 6:34pm

    Re: They at the FISA court...

    Blind trust IS the Rubber Stamp.

     

    reply to this | link to this | view in thread ]


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