President Obama’s repeated comments that “there is no spying on Americans” and that “we don’t have a domestic spying program,” as he told Jay Leno, were contradicted by two revelations at the end of last week. On Thursday, the New York Times reported that the NSA is "searching the contents of vast amounts of Americans' e-mail and text communications into and out of the country,” looking not only for Americans who communicate with foreigners under surveillance but also for those who mention information about them. On Friday, The Guardian reported that the NSA has a previously secret backdoor allowing it to query the names of American citizens in the course of searching phone calls and emails collected about foreign targets.
These revelations led news outlets like the Huffington Post and others to ask: “Did Obama lie on national television?” And it’s certainly true that the evasive language the administration uses to describe what it’s doing is increasingly corrosive. The administration feels it can’t reveal the details about its surveillance program, so it uses funny language and then gets caught “lying,” creating an atmosphere of dishonesty and distrust. Obama’s Clintonian equivocations have made this the administration of what James Clapper called the “least untruthful answer,” and that seems troubling.
But another, less noticed document released last week shows that there is a difference between the equivocations of Clinton and Obama. Clinton, in parsing the meaning of “is,” was acting like a too-clever lawyer, splitting legal hairs to craft the tightest possible legal defense. The Obama administration’s 22-page White paper setting out the supposed legal basis for NSA surveillance demonstrates that the Obama administration, by contrast, is not relying on legal defenses that are too clever. Rather, it's relying on defenses that are too flimsy and weak. Many of these are warmed over versions of arguments that principled judges and officials rejected during the Bush administration, and that the Supreme Court is now being asked to reject once and for all.
Obama lamely redefines the word "relevance."
The White Paper, released on August 9, is surprisingly mostly in the lameness of its effort to justify what it calls “Bulk Collection of Telephony Metadata under Section 215 of the Patriot Act.” The core of the argument is an attempt to redefine the meaning of the word “relevance” beyond recognizing, just as the administration’s earlier, and equally flimsy, drone memos attempted to redefine the meaning of the word “imminence” in the context of responding to an imminent threat.
The key paragraph in the 22 page white paper occurs in a discussion of what Congress meant in section 215 of the Patriot Act, which authorizes the Foreign Intelligence Surveillance Court to issue an order for the "production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism.” The Government’s application for an order must include “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” In its white paper, the administration cites a series of cases involving the discovery of documents in “ordinary civil discovery and criminal and administrative investigations” and says the standard of relevance under Section 215 should be “at least as broad.” Then comes the crucial hedging paragraph:
To be sure, the cases that have been decided in these contexts do not involve collection of data on the scale at issue in the telephony metadata collection program, and the purpose for which information was sought in these cases was not as expansive in scope as a nationwide intelligence collection effort designed to identify terrorist threats. While these cases do not demonstrate that bulk collection of the type at issue here would routinely be permitted in civil discovery or a criminal or administrative investigation, they do show that 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.
This “to be sure” is one for the ages. Far from authorizing the warrantless fishing expeditions into millions of records, Congress in amending Section 215 meant explicitly to forbid what the Justice Department now seeks to justify. As the Electronic Privacy Information Center notes in a brief filed last week with the Supreme Court, both Congressional supporters and opponents of Section 215 explicitly interpreted the “relevance” language to limit bulk collection of data, not to permit it. On July 17, during a House judiciary committee hearing, Representative James Sensenbrenner, the author of section 215, said that Congress amended the law in 2006 to impose the relevance requirement in “an attempt to limit what the intelligence community could be able to get pursuant to Section 215.” And during the debate over the 2006 amendments, Sen. Ron Wyden and others stressed that the relevance standard would address “concerns about government ‘fishing expeditions.’”
Moreover, as the EPIC brief makes clear the government’s claim that all telephone metadata on all U.S. persons is “relevant to authorized investigation” is simply not credible because it eliminates the relevance standard in two ways. First, it applies the relevance requirement only after data are collected, not before, allowing the mass collection that Congress meant to forbid. Second, it makes the remarkable claim that all telephone metadata is relevant under Section 215 because somewhere within that vast dataset there may be individual data elements that are, in fact, relevant.” In other words, the government argues that the FISC can authorize the collection of data from hundreds of billions of Verizon calls, even though “only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism- related queries.”
As the EPIC brief makes clear, the government’s practice of collecting data on hundreds of billions of calls each year and then later, unilaterally, deciding what is actually relevant (fewer than 300 last year) is not permitted by section 215. Moreover, given the scope of material covered by section 215, if it were permitted, it would allow the government to sweep up almost any data on the basis that some of it might prove relevant later. For example, the argument, if accepted, would allow the government to seize billions of medical records or book or library records without a warrant—the textbook definition of an unconstitutional fishing expedition. The White Paper’s attempt to disavow this possibility boils down to: trust us. Here is the legalese: “This conclusion does not mean that the scope of Section 215 is boundless and authorizes the FISC to order the production of every type of business record in bulk—including medical records or library or book sale records, for example,” the White Paper notes. “Although there could be individual contexts in which the Government has an interest in obtaining medical records or library records for counterterrorism purposes, these categories of data are not in general comparable to communications metadata as a means of identifying previously unknown terrorist operatives or networks.” In other words, we don’t think bulk collection of medical records is necessary to stop terrorism, but if we did, we could collect it.
It is not only the words “relevance” and “imminence” that the Obama administration has redefined beyond recognition. Now it has turned its sites to the word “targeted.” The administration has claimed repeatedly that “we do not target the content of U.S. person communications without a specific warrant anywhere on the earth,” as the Deputy Director of the NSA told Congress in June. But as Charles Savage reported in the Times, the administration has now introduced a secret rule arguing that if the target is a foreign communication, bulk communications of U.S. citizens tangentially associated with the target are permissible, and individual names of U.S. citizens may be queried as long as the communications aren’t stored. The legal analysis justifying this twisting of the Foreign Intelligence Surveillance law, according to Savage, echoes still secret reasoning first introduced in 2008 by the Bush administration to justify to real time scanning of communications for malicious computer codes.
Until the administration issues the legal memos justifying its latest contortions of Foreign Intelligence Surveillance law, it’s impossible to make a firm judgment about just how elastic the arguments are. But as the belated release of the drone and Section 215 memos show, once the administration’s legal arguments are exposed to light, they are underwhelming and unconvincing. In other words, it’s not the secret nature of the programs that requires the president to tie himself in knots by giving the “least untruthful answer.” It’s the flimsiness of the legal arguments on which he is relying to justify his actions.
Jeffrey Rosen is the legal affairs editor of The New Republic. Follow @rosenjeffrey on Twitter.