The revelation by The Guardian that the Obama administration’s National Security Agency has been secretly collecting logs of domestic and international telephone calls from Verizon “on an ongoing daily basis” under the Patriot Act is the most disturbing misuse of the government surveillance authority since the Bush administration’s warrantless wiretaps, some of which were later authorized by Congress. But the Obama surveillance program, which may represent a continuation of the Bush program under different legal authority, has an even more disturbing antecedent: the abuse of government surveillance powers by the NSA, FBI, CIA, and IRS during the Kennedy, Johnson, and Nixon administrations that led to the Church commission.
The Church commission asked a central question—does the Fourth Amendment’s protections against unreasonable searches and seizures apply to domestic surveillance? In answering yes, Congress created the Foreign Intelligence Surveillance Court, or FISA, in 1978 to supervise domestic eavesdropping by issuing secret warrants for specified items, such as the records of car-rental companies or storage facilities. But then came Section 215 of the U.S.A. Patriot Act of 2001, which broadened the scope of data for which secret warrant could be issued to include “any tangible things (including books, records, papers, documents and other items).” In other words, the government could now seize anything in secret, and without notification to those being spied on. The only qualification was that the seized data had to be relevant to a terrorism investigation and “not conducted solely upon the basis of activities protected by the first amendment to the Constitution.”
The order authorizing the massive surveillance through Verizon was signed by Roger Vinson, a retired federal judge in Florida who in 2011 issued a sweeping opinion striking down the Affordable Care Act. The Obama administration insists that its invocation of Section 215 is legal, but refuses to release the secret memorandum justifying its legal conclusion—just at it had earlier refused to release its legal memorandum justifying targeted drone killings, before changing its mind.
That 215 memorandum should be released so that Congress and American citizens can debate publicly whether or not this kind of blanket surveillance is consistent with the Fourth Amendment. The Supreme Court has not ruled definitively on the question of warrantless foreign intelligence surveillance, and earlier this year made it harder to challenge foreign intelligence surveillance by finding that potential victims of surveillance had no standing to challenge it in court. One lower court allowed a constitutional challenge against Section 215 of the Patriot Act to proceed, but no court has ruled squarely on the question of the blanket surveillance that Verizon has allowed.
It’s clear at the very least that surveillance under the Patriot Act is being used far more broadly than Obama and Bush administration officials previously acknowledged. In May 2005, President Bush’s deputy attorney general, James Comey, who Obama is expected to nominate as head of the FBI, gave the following testimony to Congress:
Section 215 of the USA PATRIOT Act allows the FBI to obtain an order from the FISA Court requesting production of any tangible thing, such as business records, if the items are relevant to an ongoing authorized national security investigation, which, in the case of a United States person, cannot be based solely upon activities protected by the First Amendment to the Constitution. The Attorney General recently declassified the fact that the FISA Court has issued 35 orders requiring the production of tangible things under section 215 from the effective date of the Act through March 30th of this year. None of those orders were issued to libraries and/or booksellers, and none were for medical or gun records. The provision to date has been used only to order the production of driver's license records, public accommodation records, apartment leasing records, credit card records, and subscriber information, such as names and addresses, for telephone numbers captured through court-authorized pen register devices. Similar to a prosecutor in a criminal case issuing a grand jury subpoena for an item relevant to his investigation, so too may the FISA Court issue an order requiring the production of records or items that are relevant to an investigation to protect against international terrorism or clandestine intelligence activities.
But we now know that the Bush and Obama administrations have used Section 215 in ways that make it look nothing like a grand jury subpoena for obtaining credit card or hotel information. Grand jury subpoenas are issued for a limited set of documents in a specific criminal investigation, launched on a showing of probable cause. Here, the telephone logs of millions of innocent Americans are being stored with no showing that they have done anything wrong. That’s why two members of the Senate Intelligence Committee, Ron Wyden (D-Oregon) and Mark Udall (D-Colorado), wrote last year that Eric Holder: “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act.”
This week began with the Supreme Court upholding the power of government to seize the DNA of Americans on arrest. Justice Antonin Scalia wrote a passionate dissent reminding Americans that “At the time of the Founding, Americans despised the British use of the so-called 'general warrants'—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus note limited in scope and application.” The massive surveillance begun by the Bush administration and now justified by the Obama administration under the Patriot Act makes the intrusions of general warrants that concerned the Framers look tame. It’s time for a national debate about whether the Patriot Act, in fact, justifies this mass surveillance; and if so, whether that act is consistent with the Fourth Amendment. The only way to have that debate is for the Obama administration to release the legal analysis that it believes justifies its actions in the first place.
Jeffrey Rosen is the legal affairs editor of The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.