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.