Wednesday, the Privacy and Civil Liberties Oversight Board held a public hearing, which can be seen in full on C-SPAN. Steven Bradbury, the former head of the Office of Legal Counsel in the Justice Department, gave an opening statement that is extremely helpful in correcting much of the misreporting concerning the NSA telephone metadata program.
He began by explaining that the business records order (a Section 215 order, as it is commonly called) has to be reviewed by FISA judges every 90 days. Some 14 judges have reviewed the operation of the program since 2006. It has also been subject to congressional oversight.
The database may only be accessed through queries of individual phone numbers and only when the government has reasonable suspicion that the number is associated with a foreign terrorist organization. If it appears to be a U.S. number, the suspicion cannot be based solely on activities protected by the First Amendment. Any query of the database requires approval from a small circle of designated NSA officers.
A query will simply return a list of any numbers the suspicious number has called and any numbers that have called it and when those calls occurred. That’s all.
The database contains five years of material. If there is a connection to a U.S. number, “the FBI may seek a separate FISA order for surveillance of a U.S. number, but that surveillance would have to be supported by individualized probable cause.”
The law and the Constitution are straight forward. Bradbury told the board:
Section 215 permits the acquisition of business records that are “relevant to an authorized investigation.” Here, the telephone metadata is “relevant” to counterterrorism investigations because the use of the database is essential to conduct the link analysis of terrorist phone numbers that I’ve described, and this type of analysis is a critical building block in these investigations. In order to “connect the dots,” we need the broadest set of telephone metadata we can assemble, and that’s what this program enables. . . .
It does not require a separate showing that every individual record in the database is “relevant” to the investigation; the standard is satisfied if the use of the database as a whole is relevant.
He reiterated, as we have here, that the Fourth Amendment simply doesn’t apply to the metadata program. “It’s important to remember that the Fourth Amendment does not require a search warrant or other individualized court order in this context. A government request for business records is not a ‘search’ within the meaning of the Fourth Amendment. Government agencies have authority under many federal statutes to issue administrative subpoenas without court approval for documents that are ‘relevant’ to an authorized inquiry.”
Nor is there any warrant requirement when the government looks at “transactional information, or metadata, as distinct from the content of communications. This information is voluntarily made available to the phone company to complete the call and for billing purposes, and courts have therefore said there’s no reasonable expectation that it’s private.”
This is very straight forward. It is therefore somewhat shocking (maybe we shouldn’t expect more) that lawmakers (not to mention pundits) got themselves riled up, claiming gross constitutional violations. The administration, which failed to adequately explain the program, is partly to blame. But there really is no excuse for lawmakers charged with national security obligations to be so ignorant of both the law and the facts. They have a serious obligation to conduct oversight and to keep the American people safe and informed.
In running through the halls with their hair on fire, they show themselves, not the program, to be deficient. If anything this episode should remind us to exercise some quality control — when it comes to voting.