By Ellen Nakashima and Robert Barnes,
The Obama administration on Friday asserted a bold and broad power to collect the phone records of millions of Americans in order to search for a nugget of information that might thwart a terrorist attack.In a 22-page “white paper,” the Justice Department for the first time detailed its legal rationale for a massive National Security Agency data collection program that it claimed is both constitutional and subject to federal oversight.
The report, which echoes assertions the administration has made to Congress, said the law and subsequent court decisions bestow broad power on the government to seek telephone records “relevant” to investigations of suspected terrorism.
“Relevance,” the paper stated, is “a broad standard that permits discovery of large volumes of data in circumstances where doing so is necessary to identify much smaller amounts of information within that data that directly bears on the matter being investigated.”
The release of the white paper appeared to do little to allay the concerns of critics in Congress and the civil liberties community who say the surveillance program violates Americans’ right to privacy. Last month, the House narrowly defeated a proposal to terminate it. The closeness of the vote,
217 to 205, was surprising but gave fresh momentum to lawmakers who have been trying to rein in the collection effort.
“The president must acknowledge what a clear majority of Americans know: Our government has violated the law by collecting the communications of millions of innocent U.S. citizens,” said Rep. Rush D. Holt (D-N.J.), who wants the collection to end and has also criticized another major NSA surveillance program that targets communications of foreigners.
The administration’s definitions defy “any previous interpretation of the law,” said Anthony D. Romero, executive director of the American Civil Liberties Union. “The way the government is interpreting relevance, anything and everything they say is relevant becomes relevant.”
“The release of this document is too little, too late in light of a massive public outcry over a secret surveillance program that has affected millions of innocent Americans,” Romero said.
Critics say the program amounts to a “dragnet,” collecting massive amounts of what the report called “telephony metadata” detailing records of telephone calls. Included is information about the telephone numbers involved in calls, when the calls were made and how long they lasted. The content of the call is not revealed.
The information is important, the government said, to allow special NSA analysts to look for calls linked to recognized terrorist groups. But critics say U.S. officials have not demonstrated that the program is necessary to prevent terrorist attacks. And they say that the white paper makes clear that the law does not directly authorize the bulk collection of Americans’ phone records.
The government, however, said it believes Congress intended a broad concept of relevance when it passed Section 215 of the Patriot Act in 2001 and later amended it. That law authorizes the government to collect “any tangible things” when there are “reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation” to obtain foreign intelligence information or to protect against international terrorism.
Some lawmakers have said that when they passed the law they did not think that they were authorizing the bulk collection of virtually all Americans’ phone records. How could that, they said, be relevant to an authorized investigation?
But the Justice Department’s report said the law was reauthorized twice after Congress had been informed in classified briefings how the law had been interpreted by the Foreign Intelligence Surveillance Court and how it was being implemented.
The white paper said there were several reasons to believe Congress had in mind “particularly broad” standards when writing the law allowing the investigations.
For instance, the law said government need only show there is “reasonable grounds to believe” that the records sought would be relevant to the investigation. Its intent was to prevent threats to national security, not establish liability or guilt for something that has already occurred.
It noted that Congress in 2006 “specifically rejected proposals to limit the relevance standard” to encompass only records relating to people suspected of terrorist activity. Some lawmakers, however, have renewed proposals to restrict the surveillance.
The government said the records searches are not unlike a government agent copying an entire computer hard drive to later review it for specific evidence, and it cites a case in which a doctor was subpoenaed to produce 15,000 patient files considered relevant to a health-care fraud investigation.
The report conceded that such cases might not permit the “bulk collection” of the sort carried out under the NSA program. However, it asserts, “the relevance standard affords considerable latitude, where necessary, and depending on the context, to collect a large volume of data in order to find the key bits of information contained within.”
Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program, said the Justice Department did not make its case.
“I think a lot of Americans would say if the government isn’t investigating a specific crime, then it has no business collecting every American’s records,” she said.
Goitein said the public would be better served by the release of the 2006 opinion by a surveillance court judge, Colleen Kollar-Kotelly, that authorized the bulk collection. That ruling is still classified.
The administration is considering whether it can release the opinion. Officials have said extricating the legal analysis from classified material is difficult. But privacy advocates say now that the program’s existence has been declassified, the public ought to be able to see the court’s legal analysis.
“The court has a responsibility to address counterarguments and contrary case law,” Goitein said. “We don’t see that in this white paper because the government is just advocating for its position.”
The Foreign Intelligence Surveillance Court hears applications for surveillance orders in secret, and the only the party that generally appears before it is the government, which is represented by a Justice Department lawyer.
“In a situation where you don’t have an advocate on the other side, I would hope that the court would have taken it upon itself to consider some of the contrary arguments,” Goitein said. “I’d like to see the court consider the fact that what the government was proposing to do went far beyond what it has been authorized to do under a ‘relevance’ standard in any other context.”
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