While the country slept Friday night and into Saturday morning, the U.S. Senate debated and voted on whether to alter substantially the NSA’s bulk telephone meta-data collection program, extend it for a short period, or simply let it die on June 1 when the “sunset” provision governing the relevant section (Sec. 215) of the Patriot Act kicks in.
Well, there was no result. “The world’s greatest deliberative body” could neither pass the bill that would have altered the program nor pass an extension. What’s left is a game of chicken, with the House of Representatives and the Obama administration having backed the reform measure and the Senate leadership—that is, Majority Leader Mitch McConnell—arguing that with the rise of ISIS this was no time to be gutting a counterterrorism tool. But in the absence of either the House or the Senate changing its position and enacting some measure, the Justice Department said it would begin the process of shutting down the program as of last Friday to meet the June 1 statutory deadline. (This coming from a Justice Department that has repeatedly found all kinds of reasons to “interpret” laws to avoid their apparent strictures.)
Watching the three branches of government deal with the legal issues and political controversy over the National Security Agency’s telephony meta-data collection program has not been a pretty picture. Indeed, not a single branch has covered itself in glory.
When the program was first revealed by a leak from former NSA contractor Edward Snowden, it caused quite the uproar. NSA was, without individualized court warrants, sweeping up massive amounts of domestic and foreign telephone meta-data: the number called from, the number called, at what time, and for how long the call was made. Matching that data up with numbers being used by suspected terrorists, NSA was able to look for possible terrorist connections here and abroad and pass that information on to the FBI or CIA. From the headlines and news accounts covering the Snowden’s leak, it seemed the era of “Big Brother” had truly arrived.
But, as referees at football games now say, “upon further review,” it turned out that a.) the NSA was not using the data to snoop on Americans gratuitously; b.) only a select few analysts at NSA had access to the data; c.) the program collected no call content; d.) federal judges associated with the Foreign Intelligence Surveillance Court were overseeing on a regular basis what numbers could be used to query the data base; and e.) members of Congress had been briefed on the program. Moreover, as a constitutional matter, the collection itself was arguably within the boundaries set by the Supreme Court when it came to Fourth Amendment strictures on legitimate government “searches and seizures.”
In spite of these facts, and the fact that his administration had utilized the program throughout his first term, the president acted as though the program was some alien creature—personally choosing neither to defend the intelligence community from the public onslaught nor the program itself. It was nearly a half-year before he spoke out. Even then, he confused matters further by stating no wrong had been committed but still raising the ominous specter of past police state practices. What he offered up were a few half measures designed to address problems that didn’t exist and which appeased no one.
More recently, a federal appeals court concluded that the collection program is not, as the FISA court and the Justice Department had previously argued, authorized by the Patriot Act’s Section 215. The opinion—which relies on far from convincing interpretations of congressional floor statements to reach its narrow reading of Section 215 and virtually ignores the contrary legal opinions of fellow federal judges from the FISC—however ends by punting on whether to enjoin NSA from further collection. Issued precisely when Congress was considering whether to amend the law governing the program or reauthorize Section 215, the Court’s decision amounted to a politically-charged “advisory” opinion, a practice that the federal courts have traditionally and wisely avoided.