Last Friday, in an interview with CNN, President Obama acknowledged that "the capabilities of the NSA are scary to people." The challenge for him, he explained at a press conference earlier this month, is "how do I make the American people more comfortable" with the National Security Agency's routine collection of information about the intimate details of our lives, including the destination, timing, and length of every phone call we make.
The original plan was simply not to tell us about the government's mass surveillance of innocent people, since what you don't know can't discomfort you. Now that former NSA contractor Edward Snowden's leaks to the press have forced Obama into a debate he never wanted to have but nevertheless welcomes, the plan is to assure us that the NSA's scary capabilities are exercised under close supervision by the judicial and legislative branches. The only problem is that isn't true.
Last week, responding to a Freedom of Information Act lawsuit by the Electronic Freedom Foundation, the Obama administration finally released a heretofore secret 2011 ruling in which John Bates, then the chief judge of the Foreign Intelligence Surveillance Court (FISC), deemed one aspect of NSA surveillance, involving the collection of "wholly domestic" Internet communications, unconstitutional. The White House presented Bates' decision as evidence that we needn't worry about our privacy because federal judges are monitoring the spies who are monitoring us.
A close reading of the opinion, however, reveals that FISC's ability to discover abuses hinges on the executive branch's willingness to admit them. "For the first time," Bates writes, "the government has now advised the Court that the volume and nature of the information it has been collecting is fundamentally different from what the Court had been led to believe."
A footnote provides further cause for concern: "The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program." One of the earlier cases involved the NSA's disregard for the rules governing searches of its phone record database. "Contrary to the government's repeated assurances," Bates writes, "NSA had been running queries of the metadata using querying terms that did not meet the required standard for querying."
What is the other example of misrepresentation that Bates had in mind? We don't know, because that part of his opinion is blacked out.
As Reggie Walton, FISC's current chief judge, explained to The Washington Post, "The FISC is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders." Except that FISC operates in secret, hearing only from the government, and people subject to NSA surveillance almost never have a chance to challenge it in court.
Even when the government is honest with FISC, we cannot necessarily count on the court to protect our privacy. As a "white paper" released by the Obama administration on August 9 emphasizes, "fourteen different FISC judges" have approved the collection of everyone's telephone records under Section 215 of the PATRIOT Act, which authorizes court orders demanding "any tangible things" reasonably considered "relevant" to a terrorism investigation. If information about the entire population is "relevant," what isn't?
The white paper argues that Congress implicitly approved this amazingly broad interpretation of the law because it "twice reauthorized Section 215" after information about the NSA's phone record dragnet "was made available." How available was this information? Not very, judging from the objections lodged by more than 200 House members, including a chief author of the PATRIOT Act, after Snowden's revelations. Yet Obama claims the program is "fully overseen" by Congress.
Are you comfortable yet?