Ignorance Is Ratification

How Congress unknowingly approved the mass collection of Americans' phone records

In The Hitchhiker’s Guide to the Galaxy, Arthur Dent discovers that the plans for a highway project involving demolition of his house have been "on display" in the basement of a government building at "the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard.'" The Obama administration has a similar idea of what adequate notice means in the context of the National Security Agency's domestic surveillance activities.

The administration argues that Congress approved the NSA's mass collection of Americans' phone records under Section 215 of the PATRIOT Act because it "twice reauthorized Section 215" after information about the program "was made available." A ruling by the Foreign Intelligence Surveillance Court (FISC) published last week endorses this view, even though it appears the existence of the NSA's phone record database came as news to most members of Congress when it was revealed last May by former NSA contractor Edward Snowden.

According to the "doctrine of ratification," FISC Judge Claire Egan notes in the August 29 opinion, "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." She allows that "in the national security context where legal decisions are classified by the Executive Branch and, therefore, normally not widely available to Members of Congress for scrutiny, one could imagine that such a presumption would be easily overcome."

But "that is not the case here," Egan says, because the executive branch gave members of the House and Senate intelligence committees a report describing the NSA's phone record dragnet, and that document was "made available to all members of Congress." She adds in a footnote that "it is unnecessary for the Court to inquire how many of the 535 individual Members of Congress took advantage of the opportunity to learn the facts about how the Executive Branch was implementing Section 215."

Such an inquiry certainly would be inconvenient for the Obama administration. Egan reveals in another footnote that legislators were informed of the opportunity to view the report via "Dear Colleague" notices, commonly ignored messages they have been conditioned to treat as spam.

In a speech at the Liberty Political Action Conference in Chantilly, Virginia, last week, Rep. Justin Amash, the Michigan Republican who co-sponsored an amendment that would have put an end to the NSA's comprehensive collection of telephone metadata, described how such viewing opportunities work. On August 1 a member of Amash's staff happened to come across a notice from Rep. Mike Rogers (R-Mich.), chairman of the House Intelligence Committee, as she plumbed the depths of her boss's "Dear Colleague" folder. Rogers said "a classified letter from the Office of the Director of National Intelligence" would be available for viewing from 9 a.m. to noon the following day.

The viewing window coincided with a vote and occurred on the last day before a five-week summer recess. "The only people who showed up at that briefing were the people I talked to," Amash said. "Nobody else knew that that was going on." Furthermore, all of the legislators had to sign a nondisclosure agreement promising not to discuss the document with their colleagues. "It is unfortunate that many members do not take advantage of these opportunities," a spokeswoman for the House Intelligence Committee told The Atlantic.

You can start to see why so many legislators were dismayed to learn, along with the rest of us, that the NSA had deemed every American's phone records "relevant" to a terrorism investigation—another counterintuitive notion that Judge Egan endorsed. More than 200 House members voted for Amash's amendment, and The New York Times reported that another 61 Democrats who voted no "are now publicly signaling their discontent."

How could Congress have approved the Obama administration's secret interpretation of the PATRIOT Act if most members of the House did not know about it? Like Arthur Dent, they had their chance.

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  • Fist of Etiquette||

    ...it appears the existence of the NSA's phone record database came as news to most members of Congress when it was revealed last May by former NSA contractor Edward Snowden.

    Three possibilities here exist, each of which is very plausible. One, the unconstitutional spy program was well known to Congress and they are now feigning ignorance. Two, the unconstitutional spy program details were made available to Congress but they were too lazy to investigate those deets. Three, the unconstitutional spy program was hidden from most of Congress and some of those members kept in the dark would have actually protested had they known about it.

  • Mickey Rat||

    Probably some combination of two and three.

  • Falkland Comments||

    "by former NSA contractor Edward Snowden."

    Who the official Washington establishment wants to hang for the crime of informing the public of their misdeeds.

  • Heenan73||

    Four, the unconstitutional spy program was hidden from most of Congress and one or two of those members kept in the dark would have actually protested had they known about it, while the rest are really pleased that they now have an excuse.

  • Drake||

    I put out a monthly report that usually runs about 200 pages. I could fill the last section with porn and nobody would notice.

  • pan fried wylie||

    Must do wonders for your level of job satisfaction.

  • Drake||

    Let me tell you something about TPS reports…

  • UnCivilServant||

    I don't put out a monthly report (depite the unit being expected to) and no one has noticed its absense in half a year. I instead use the time for more productive purposes.

  • pan fried wylie||

    Fuck You, That's How.

  • Rich||

  • crashland||

    Oh to sip pangalactic gargle blasters on the lawn in front of the capitol whilst the congress is locked inside with hundreds of Vogon poets...

  • itsnotmeitsyou||

    That's a beautiful image. Thank you for that.

  • Bardas Phocas||

    And now for some Vogon poetry [which should be read on senate floor]:

    Oh freddled gruntbuggly,
    Thy micturitions are to me,
    As plurdled gabbleblotchits,
    On a lurgid bee,
    That mordiously hath bitled out,
    Its earted jurtles,
    Into a rancid festering confectious inner-sphincter. [drowned out by moaning and screaming]
    Now the jurpling slayjid agrocrustles,
    Are slurping hagrilly up the axlegrurts,
    And living glupules frart and slipulate,
    Like jowling meated liverslime,
    Groop, I implore thee, my foonting turling dromes,
    And hooptiously drangle me,
    With crinkly bindlewurdles,
    Or else I shall rend thee in the gobberwarts with my blurglecruncheon,
    See if I don't.

  • SugarFree||

    Still better than anything by The Black-Eyed Peas.

  • Ted S.||

    Let's get retarded in here.

  • db||

    If that has never been read into the Congressional Record before, I will seriously consider running for a seat in the House.

  • Ted S.||

    You wouldn't rather have them get raped by Warty?

  • Wizard4169||

    Just keep in mind, the purpose of the Galactic Presidency isn't to govern the galaxy, it is to distract attention away from those who do. By this standard, the Obama administration is probably right up there with the Beeblebrox administration.

  • db||

    How in the fuck can a nondisclosure agreement requiring Congresspeople not to discuss something WITH THEIR OWN COLLEAGUES WHO HAVE THE SAME NOMINAL "ACCESS" AS THEY DO possibly be binding? This is beyond surreal.

  • Kyfho Myoba||

    Article I, Section 6, Clause 1: They (Senators & Reps) shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same, and for any
    Speech or Debate in either House, they shall not be questioned in any other Place.

  • DenverJay||

    Also, I was under the impression that it was Congress who wrote the laws in the first place. So, did Congress write this law limiting their own ability to discuss things with their colleagues? Or, as I suspect is the true case, did the intelligence agencies (i.e. the executive branch) write these non-disclosure agreements themselves? You know, to limit the ability of the legislature to enforce meaningful oversight. Fucking tell me we still live in a Republic, or any other kind of country of laws.

  • JWatts||

    "the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard.'" That was a poetic analogy. An exaggeration certainly, but still spot on.

  • Heenan73||

    "How could Congress have approved the Obama administration's secret interpretation of the PATRIOT Act if most members of the House did not know about it?"

    I thought the Patriot Act was Mr G. W. Bush's?

    Did the Obama Administration change the act, or merely re-enact the existing law?

    Just want to be clear on this!

  • Wizard4169||

    Are you seriously believing there's any difference? Big O ran and got elected purely on the basis of NOT being Dubya, but the substantive difference between the two isn't enough to fill a thimble.

  • amyebrinton||

    my buddy's half-sister makes ,$77, every hour on the computer. She has been unemployed for 8 months but last month her income was ,$21889, just working on the computer for a few hours. Check Out Your URL....

    http://www.Works23.com

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