Just a few short weeks ago, our elected legislators were very, very concerned about the future of the NSA’s bulk data collection programs.
Some were absolutely convinced that forcing the NSA to submit to the rubric set forth in the Constitution requiring probable cause and a warrant to search through Americans’ phone records was going to lead to the downfall of the entire homeland security structure, rending America incapable of seeking out and destroying our domestic enemies, even though it was through a program that rarely, if ever, actually worked.
Others were convinced that, without a radical realignment of the PATRIOT Act, the government was merely going to work its way around any roadblocks to authorization, thus making any argument or measure designed to curb the NSA’s power almost useless in the real world. Championing a complete overhaul of the Act, done with now great distance from the events of September 11, 2001, would allow us to discern the cost of our security with a fresh eye.
The Obama Administration, it now seems, realized that neither side of the debate really mattered, brushed them both aside and went ahead with attempts to reauthorize the NSA’s bulk data collection programs regardless of Congressional and public concerns. Yep, the man who was going to put an end to warrantless wiretapping just asked the secretive FISA court to ignore a public courts ruling declaring the NSA’s bulk data collection program illegal and proceed with reauthorizing said collection as soon as possible.
The Obama administration has asked a secret surveillance court to ignore a federal court that found bulk surveillance illegal and to once again grant the National Security Agency the power to collect the phone records of millions of Americans for six months.
The legal request, filed nearly four hours after Barack Obama vowed to sign a new law banning precisely the bulk collection he asks the secret court to approve, also suggests that the administration may not necessarily comply with any potential court order demanding that the collection stop.
US officials confirmed last week that they would ask the Foreign Intelligence Surveillance court – better known as the Fisa court, a panel that meets in secret as a step in the surveillance process and thus far has only ever had the government argue before it – to turn the domestic bulk collection spigot back on.
That’s right – the ink wasn’t even dry on the USA Freedom Act before the Obama Administration turned around and said the Act wasn’t legally binding on the FISA court or the NSA. While the President was still removing the television makeup after making his address on the subject, he was ordering his lawyers to make sure the NSA’s data collection programs continued.
The Administration argues that the USA Freedom Act gives it six months to wind down the program, so it needs full – not partial – authorization to continue collecting Americans’ metadata records. The Admin also argued that it doesn’t matter what the Second Circuit Court of Appeals thinks anyway. Since FISA is a secretive court charged with authorizing the NSA’s programs and operating outside of the normal route of legal appeal, the Second Circuit’s ruling isn’t binding. Instead, the Administration’s lawyers said the FISA court should just rely on it’s own ruling about the program’s legality – and, of course, you know what that means.
Luckily for us, the FISA court, while it may not be covered by the traditional appeals process, is bound by Congressional authority, and the court will have to consider what the USA Freedom Act means for the NSA’s data collection program before they authorize themselves to authorize the NSA. Unluckily for us, the FISA court would, essentially, have to rein in its own power by edict in order to abide by the generally-accepted USA Freedom Act interpretation, and that’s not likely to happen. So bulk data collection is probably going to continue regardless of what anyone says or wants.
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