When the government increases its power at any time for any reason, beware of two things: it won’t give it up in the future no matter who comprises ‘the government,’ and it will be applied differently under a different administration. Thus begins the tale of how the National Security Agency got to the point of gathering data on millions of Americans.
A friend of mine and regular radio show guest, Elizabeth Scalia, opens her book Strange Gods right off the bat in the Introduction with a prophetic account, and she couldn’t have known how prophetic it was when the book was published earlier this year. It’s the true story of a “stalwart conservative” woman in early post 9/11 America who expressed her concerns in debates over the passage of the Patriot Act. “She feared putting too much power in the hands of government–even if it meant giving that power to a president she basically liked,” Scalia writes. “Her main concern was that she fully expected these expanded powers to eventually be abused.”
Now, here we are. The New York Times on Independence Day weekend 2013:
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.
“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”
Precisely. And speaking of ‘the court issuing orders’, this was published by the Wall Street Journal Sunday night: “Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering”.
The National Security Agency’s ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: “relevant.”
This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.
In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court’s interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.
“Relevant” has long been a broad standard, but the way the court is interpreting it, to mean, in effect, “everything,” is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department’s primary authority on federal criminal surveillance law.
“I think it’s a stretch” of previous federal legal interpretations, says Mr. Eckenwiler, who hasn’t seen the secret ruling. If a federal attorney “served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”
Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a “secret interpretation” of the Patriot Act. The senators’ offices tell the Journal that this new interpretation of the word “relevant” is what they meant. An official at FISC, the secret court, declined to comment. The NSA referred questions to the Justice Department, saying this provision of the Patriot Act addressed FBI authorities. The Justice Department didn’t comment.
And here we are. Which is…who knows where? Besides, that is, the NSA.