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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.

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

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16 Comments
Anonymous Coward says:

in reality, this makes those on the court even more guilty than those in the NSA for carrying out the surveillance. to know about it, to know that it was breaking the law but to ignore all the evidence that it was against the law is despicable! no wonder these ass hats are trying to do whatever they can to shift the blame! i somehow doubt if this will work. it certainly shouldn’t do anyway! Congress should be all over these like a rash!!

Uriel-238 (profile) says:

Re: Force gives the Constitution meaning, or not.

The US Constitution trumps the secret rubber stamp court. Doesn’t matter what they rule, because it’s unconstitutional. Constitutional law trumps all other law, and rulings. 🙂

Currently force is demonstrably not serving the US Contstitution, and it trumps all. In our inaction we concurr.

== == ==
As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
Encrypted with Morbius-Cochrane Perfect Steganographic Codec 1.2.001
Tuesday, September 17, 2013 9:28:58 PM
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Jim B. says:

Congress cannot

If Congress were to explicitly authorize this then they would be in violation of the Constitution. Period. What is so hard for so many to understand that the Constitution is the law of the land and that ALL OTHER LAWS MUST COMPLY with it?

If Congress wants to change the Constitution that is their business, however there are some pretty explicit guidelines that they must follow in order to do so.

They cannot just invent ways of working around the Constitution even if they ALL DID KNOW AND APPROVE.

Modify the Constitution if you will, but don’t pretend that what you are doing is legal in the meantime.

MrWilson says:

The irony of this situation is that it is just one smaller example of what happens in the United States Government. Just recast Feinstein, Rogers, and the FISA court as Congress and the rest of Congress in this scenario as the American people and you’ve got what passes for “representation” in the government.

“We didn’t think they needed to know. Don’t worry, we’ll represent their interests…”

I’d rather have to spend my extra time voting on things directly than trusting the best fund-raiser in my district to represent my interests in DC.

Anonymous Coward says:

It is far past time to end the Patriot Act. As always, give a method of abuse and it will be abused. If nothing else, these past couple of months of Snowden revelations have proven beyond a doubt this is happening.

Congress is too busy raising campaign funds most nights of the week, needing to recover during the day, to be bothered with actually governing. Crap look at the excuse for a political party the GOP is. Its not functional and it can’t get beyond trying for the 42nd time to defund Obamacare. Not only is it insane, it can’t do it’s job.

Then you have this secret court that is a true rubber stamp despite it’s prostrations otherwise. The whole thing is nothing but an excuse to abuse the privacy of the citizen.

Corruption says:

To the highest levels

Secret courts, secret laws, secret interpretations of laws. These are things that belong in science fiction novels about corrupt governments bent on control and not in real life. Power corrupts, remember that. And absolute power means you can change things to suit your way, including assassination, overthrowing governments, disregarding its own and international laws, you wouldn’t think I was talking about the United States. In short, the US government needs an enema.

Anonymous Coward says:

they are all as guilty as each other! some for trying to worm out of blame by saying information was given to Congress, when they knew it wasn’t, some for stopping the information from going to Congress and those in Congress for not being in the least bit interested in doing their job, looking out for the interests of the people, by just waving the renewal through. there isn’t one person here that isn’t blame free! there are a whole lot who are trying to blame others, pass the buck, but every single one needs to lose their job for good!!

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