Now, more officials are saying that Americans should be able to read and understand how an important precedent was established under the 2001 USA Patriot Act, which was passed after the Sept. 11, 2001, attacks.
“The original legal interpretation that said that the Patriot Act could be used to collect Americans’ records in bulk should never have been kept secret and should be declassified and released,” Sen. Ron Wyden (D-Ore) said in a statement to The Washington Post. “This collection has been ongoing for years and the public should be able to compare the legal interpretation under which it was originally authorized with more recent documents.”
Kollar-Kotelly told associates this summer that she wanted her legal argument out, according to two people familiar with what she said. Several members of the intelligence court want more transparency about the court’s role to dispel what they consider a misperception that the court acted as a rubber stamp for the administration’s top-secret spying programs. The court meets in secret to hear applications for domestic surveillance and its opinions generally are not made public.
Kollar-Kotelly, who is no longer on the FISC, declined to comment, as did the current chief judge, Reggie B. Walton.
Kollar-Kotelly’s interpretation served as the legal basis for a court authorization in May 2006 that allowed the NSA to gather on a daily basis the phone records of tens of millions of Americans, sources say. Her analysis, more than 80 pages long, was “painstakingly thorough,” said one person who read it. The date of the analysis has not been disclosed.
The broad outlines of the judge’s argument have been revealed via a Justice Department “white paper.” And last month, the administration released a 29-page opinion written in August that defended the program by asserting essentially that as long as some Americans’ phone records might be “relevant” to a terrorism investigation, the government may collect them all. But that opinion, current and former officials said, is not a substitute for Kollar-Kotelly’s original interpretation.
“If the question is, ‘How was this program authorized and what type of legal analysis first took place?’ the 2013 opinion is just not responsive,” said one former senior Obama administration official. “It’s hard for me to imagine, with all that’s already out there, that highly classified intelligence material would be so deeply entwined in the legal analysis in that original interpretation that they couldn’t somehow release it.”