New Questions Undermine Government’s Spying Claims
As the House votes on whether to defund NSA dragnet collecting this afternoon, there appears to be yet another effort — like James Clapper’s denials about collecting data on millions of Americans — to misinform Americans about the way the government uses Section 215 of the PATRIOT Act as part of a program to identify people in America talking to alleged terrorists.
Assuming that section included a description both of the FBI’s justification for the dragnet database in the first place, as well as evidence explaining why phone contacts justified a FISA warrant in this case, that probable cause section is the one that is, contrary to the government’s claims, extraordinary. That is, the government was presenting a novel application of a range of secret orders as used in practice. It was presenting its argument that it could collect phone records on all Americans and based on the associations shown therein start wiretapping an American citizen. This may well have been a novel application, one that merits close constitutional review as implemented.
And yet the government told Judge Miller — who, given the secrecy of FISA court filings, would have had no way to dispute them — that this case was not at all extraordinary. Miller was obligated to make a perhaps unique constitutional review, but the government misled him about how routine such orders really were.