Congress may be preparing to reinforce two horrible FISA Court decisions and an abusive government search with no debate in the coming weeks: a decision to give national security orders unlimited breadth, one making it legal for the government to investigate Americans for activities protected under the First Amendment, and the FBI's "back door" searches of Americans' communication content collected under the FISA Amendment Act Section 702 authority.
On Tuesday, the ACLU and the Department of Justice argued about the legality of the NSA's phone dragnet program before the 2nd Circuit Court of Appeals in New York. Much of the discussion focused on the implications of the government's theories that it can collect all phone records in the United States based on a claim they are "relevant" to standing terrorism investigations. "You can collect everything there is to know about everybody and have it all in one big government cloud," said Judge Gerard Lynch, describing the implications of the government's theories to Assistant Attorney General Stuart Delery.
But the ACLU and the government also engaged in an equally important debate -- on whether the FISA Court's interpretation of the word "relevant" overstepped Congress' intent -- focused on whether Congress had backed FISC's definition of "relevant" by reauthorizing the Patriot Act twice.
The executive branch and the FISA Court have spent the last 15 months arguing that Congress "ratified" the expansive interpretations on which the phone dragnet program relies when it reauthorized the Patriot Act in 2010 and 2011 because, having been informed of the program, Congress extended the Patriot Act without changing that language. "When Congress reenacts a statute without change," the administration said in a white paper on the phone dragnet in August 2013, "it is presumed to have adopted the administrative or judicial interpretation of the statute if it is aware of the interpretation." Three federal judges have bought that claim, relying on it to rule the program is legal.
The government's claim with regards to past authorizations is terribly weak. There were at least six known instances where Congress did not get notice it should have; in several cases, those obligations were imposed by law. Perhaps the most important -- in which House Intelligence Committee chairman Mike Rogers did not invite most congressmen to read notice of the dragnet provided to Congress in 2011 -- means that 65 of the people who voted to reauthorize the Patriot Act in 2011 probably had had no way of learning about the phone dragnet. And, as the ACLU's Alexander Abdo pointed out in Tuesday's hearing, Congress couldn't have been briefed on the legal analysis underlying the phone dragnet because the FISA Court never got around to writing an opinion on it until 2013, in response to the Snowden leaks.
The executive's claim that Congress "ratified" the phone dragnet before the Snowden leaks -- and therefore that the program currently complies with the intent of Congress -- is farcical. And the judges on the panel -- in addition to Lynch, fellow Democratic appointees Robert Sack and Vernon Broderick -- seem skeptical of the government's claim that secret briefings offered about an unannounced program can support a claim that Congress knowingly ratified the program.
So the government's argument that the program is legal because Congress reauthorized the Patriot Act after the government started secretly using it to collect most phone records in the U.S. may fail to persuade the 2nd Circuit.
But that won't be true going forward.
The government's public release of numerous court opinions and other intelligence information over the last 15 months means no one in Congress can make a credible claim to be uninformed of the decisions underlying these parts of the government's spying. In 2011, most members of Congress probably didn't know the FISC had redefined the word "relevant" in a key Patriot Act definition to mean "everything," but they should know that now. Yet none of the current proposals to reform the dragnet do anything about the definition of "relevant." They limit collection of phone records in other ways, but would permit bulky collection under that "relevance" standard in a number of ways and by association using a number of statutes.
Thus, while the 2nd Circuit might rule the current dragnet illegal in part because the legal logic of it would permit the government to "collect everything there is to know about everybody," if Congress passes the USA Freedom Act without changing that definition of "relevant," it will be easier for the government to win this argument in the future.
Congressional passage of the USA Freedom Act with the existing language intact would also probably "ratify" two other intelligence community programs: first, a more recently released decision, a February 2013 opinion in which Judge John Bates ruled that prohibitions on using the Patriot Act to investigate Americans based solely on First Amendment-protected activities -- such as political speech or religion -- do not apply if associates of the targeted person are engaged in unprotected activities. Bates took language from Congress prohibiting the government from using Patriot authorities against Americans for nothing more than their speech and created a loophole allowing the government to do just that.
As Stanford law professor Jennifer Granick said in a post on this opinion, "Most people, when they cite [the] statutory language [from the Patriot Act], believe it means that Americans won’t be subjects of terrorism investigations for the First Amendment protected things they say or do." But based on what we can see of Bates' opinion, Granick continued, "They would be wrong."
And while the language of the opinion pertains to a terrorism investigation, the novel interpretation of the phrase might now apply in other uses of Patriot authorities, such as counterintelligence investigations, which sometimes includes hacking or leak investigations. Behind a veil of secrecy, Bates and the government appear to have made it OK to investigate Americans for their free speech again.
In addition, the government has revealed the FBI conducts "back door" searches -- warrantless searches on U.S. persons' data collected under FISA Section 702 -- even for "assessments" of counterterrorism investigations. The FBI keeps no records of such searches, presumably because it dictated for itself in 2011 it need not keep any records of assessments. As a result, it refuses to tell Congress how many Americans have been subjected to such warrantless searches.
In a letter released Wednesday, Director of National Intelligence James Clapper seemed to point to back door searches. He hailed Sen. Leahy's version of the USA Freedom Act because it "recognize[s] the technical limitations on our ability to report certain types of information." The big topic the bill limited was FBI searches of 702 information. That suggests Clapper is pointing to Leahy's exemption for FBI's back door searches.
That would be particularly troubling given that back door searches are one area of particularly acute constitutional concern.
And if Congress doesn't do anything about these issues, in the future the government will argue -- more credibly, this time -- that Congress signed off on these expansions of Executive authority.
Whether by passing USA Freedom Act this fall or by reauthorizing the Patriot Act next June, Congress is likely to extend the life of the Patriot Act. Given the absurd implications of some of the recently released FISC opinions, Congress would do well to redefine this language to reclaim the plain English meaning, contrary to FISC's reinterpretations of it.
Thus far, however, they show no sign of doing so.