The Justice Department Says NSA Surveillance Is Legal but Won't Tell You Why

Photograph by Mark Wilson/Getty Images

On Thursday morning, Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, told reporters that the National Security Agency’s massive operation to monitor phone records is authorized under the business records section of the Patriot Act. “Therefore,” she said, “it is lawful.” On Thursday evening, James Clapper, the director of National Intelligence, offered a statement. His highest priority, he explained, is “to work within the constraints of law to collect, analyze and understand information related to potential threats to our national security.”

It is lawful. Within the constraints of a law. These are just statements. They lack an argument. What Feinstein and Clapper told us yesterday we knew already from the court order obtained by the Guardian. On April 25 of this year, the Foreign Intelligence Surveillance Court (FISC) decided that the information the FBI had requested of Verizon on the NSA’s behalf “satisfies the requirements of 50 U.S.C. § 1861.” This is what Feinstein means when she refers to the business records section of the Patriot Act. In 2001, Congress authorized the FBI to request the court to order a business to provide “any tangible things … for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

What we have is the court’s order granting the request: a statement saying that it’s legal. What we don’t have is the FBI’s request: an argument explaining how it’s legal. According to the requirements of the U.S. code, somewhere is a document explaining why the phone records of every one of Verizon’s customers—showing the time, destination, duration, and location of every call—pertains to a foreign power or the suspected agent of a foreign power. This document may well contain a compelling argument. But we can’t read it. Not only do we not know the things we might assume would be classified, such as the methods of collection and analysis; we also don’t know the arguments used to justify this collection in the first place. In place of an argument, we have a tautology. The FBI’s request is legal—because it is legal under the business records section of the Patriot Act.

What we think of as “the law” rests on a history of arguments. We know this from criminal cases: The defendant’s lawyer offers a case for innocence, and the district attorney offers a case for guilt. Any argument must stand the test of a counterargument. The White House lacks the courage of its conviction. It believes that its actions are legal. But it is loath to subject its belief to a counterargument.

“Yes, of course it ties our hands,” says Cindy Cohn. “We’re forced to shadowbox. We have to guess what their arguments are and try to knock down our guesses.” Cohn, who is general counsel for the Electronic Frontier Foundation, an advocacy group for digital privacy, has been attempting since 2011 to use the Freedom of Information Act to read the Department of Justice’s justification for data gathering under section 215 of the Patriot Act—the business records section. After some stalling, she says, the Justice Department referred the foundation to the Foreign Intelligence Surveillance Court, which in turn said to return to the Justice Department with a Freedom of Information request.

The Bush and Obama administrations have together created an elegantly logical box. Most likely through a memo from the Office of Legal Counsel, one or both administrations have persuaded themselves that sucking up the phone records of all Americans is legal. Neither administration has shared that memo, and both have benefited from another part of the Patriot Act that prevents them from having to share it.

As with the Prism program revealed today by the Washington Post, the NSA can’t do its work alone. It needs the cooperation of commercial companies, which in theory should have to balance such requests with legal obligations to their customers’ privacy. Companies can be sued for their actions, just as the government can. A suit, such as the DA’s case for the prosecution, is an argument; if it moves forward, someone will have to provide a counterargument. Except that these companies can’t be sued for what they do in response to a request from the FISC; it says so right there in the business records section of the Patriot Act.

Moreover, a law was passed in 2008 granting retroactive legal immunity to any company that had provided business records since 2001. That is, from Congress: It’s legal now. If it weren’t legal before—and we’re not saying it wasn’t—you still can’t sue companies over what they may or may not have done that was probably legal anyway. This was a minor issue during the presidential campaign that year. Christopher Dodd, then a U.S. senator and a candidate for president, offered an amendment and ultimately filbustered to strip the immunity out of the bill. He failed. Senator Barack Obama, after initially opposing the immunity for telecoms, decided to back the version that passed.

At the time, I simply assumed that this immunity was a sop to the telecoms. But reading back over a fact sheet (pdf) and a letter (pdf) that the Justice Department provided at the time in support of immunity, it seems clearer now. The Bush administration needed the telecoms not to be sued just as badly as the telecoms wanted not to be sued. Not only did the U.S. attorney general and the director of national intelligence at the time recommend immunity as “necessary to ensure the continued assistance of the private sector;” they also argued that a decision on immunity couldn’t even be delayed until after a public review by an inspector general. The Senate intelligence committee, they wrote, had already looked at classified documents and determined that the practice was legal. The administration was never willing to argue its case in public.

Cindy Cohn’s EFF had suits against telecoms pending at the time. “They’re retroactively magically, presto-chango immune,” she says. She couldn’t sue then, and she can’t sue now, to get a argument out of either the telecoms or the Justice Department. When she sends a FOIA request to read the argument, the Justice Department sends her to the Foreign Intelligence Surveillance Court, and the court then sends her back to Justice. Again, none of this obfuscation is about the actual content or methods of work done by the NSA. It’s a response to an attempt to get something, anything, out of either the Bush or Obama administrations on why this is all legal.

It is. Don’t worry about it. There’s probably a memo somewhere.

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