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.