Government Releases Secret Surveillance Court Opinion Reauthorizing Bulk Collection Of Telephone Records
By Mel Fabrikant Wednesday, September 18, 2013, 04:37 PM EDT
Today the government released a recent opinion of the Foreign Intelligence Surveillance Court (“FISA Court”) reauthorizing the NSA’s bulk collection of Americans’ phone records. Elizabeth Goitein and Faiza Patel, co-directors of the Brennan Center’s Liberty and National Security Program, are available for your analysis and coverage of this story.
The newly disclosed opinion, dated August 29, 2013, was written with the understanding that it would be made public. In the opinion, the Court accepted the government’s claim that it can collect essentially unlimited volumes of Americans’ data, as long as there is reason to think a tiny fraction of the data may prove useful in the future. The Court also reasoned that Congress implicitly blessed bulk collection when it reauthorized the Patriot Act, even though some members outside the Intelligence and Judiciary Committees did not actually see any information about the highly classified program.
“The secret court endorsed the government’s ‘innocent until proven guilty’ approach,” said Goitein. “In the NSA’s eyes, all of us are potential suspects, and none of our personal information is off-limits. Courts are supposed to protect Americans from this kind of overreaching, not enable it. But the opinion fails to consider or even mention some of the strongest arguments against bulk collection – including the NSA’s own history of non-compliance with the Court’s orders.”
“The FISA Court’s opinion shreds the legal requirement that the government only collect information that is relevant to an investigation,” said Patel. “The court takes the view that it will accept the government’s claims about relevance so long as they are not patently unreasonable. That’s why it went along with the argument that the NSA can collect records of all Americans’ phone calls and troll through them as it deemed fit.”
Goitein, an expert on government secrecy and surveillance policies, has written about the NSA’s recently disclosed activities in the Wall Street Journal, Time, the Christian Science Monitor, and the Boston Review; has appeared to discuss the NSA on Andrea Mitchell Reports, All in with Chris Hayes, the Rachel Maddow Show, and The Shepard Smith Show; and has been quoted on this subject in the Washington Post, USA Today, the Daily Beast, the Guardian, McClatchy, and Bloomberg, among other outlets.
Faiza Patel, an expert on national security and counterterrorism, has written about surveillance in the New York Times (on multiple occasions), the Guardian, Salon, msnbc.com, Defense One, and The Huffington Post, has appeared to discuss the NSA on Current TV and Wall Street Journal Live, and has been quoted on this subject in the New York Times, the Boston Globe and the Christian Science Monitor, among others.