When the House passed the USA Freedom Act (H.R. 3361) in May, both Members and the administration announced that it would end bulk collection of metadata about Americans’ communications. The administration is now urging Congress to pass the bill as soon as it can and Senators are now considering revisions to specific language in the House-passed bill.
But the administration is still withholding key information that is needed before any Member of Congress or the public can have confidence that the USA Freedom Act would in fact limit all the authorities that the Department of Justice claims can be used for the NSA’s bulk collection of telephone metadata.
The bill passed by the House amends section 501 of the Foreign Intelligence Surveillance Act (sometimes called section 215) to prohibit the bulk collection of telephone metadata and require instead the use of a “specific selection term” to identify metadata sought by the government. The Senate is currently working on revisions to the definition of “specific selection term.” (The House bill would also amend the FBI’s authority to use National Security Letters to obtain “toll billing records information.”)
But we don’t know whether the Justice Department has opined that other statutory authorities – not now addressed in the USA Freedom Act – could authorize the NSA’s bulk collection. Without this knowledge, we can’t be certain whether the proposed amendments to section 501 (215) will in fact be sufficient to prohibit the NSA from engaging in bulk collection of metadata using some other hitherto unidentified authority.
This is not a fanciful concern. There is in fact a still partly secret OLC opinion by the Justice Department that may address precisely this question. As readers know, the bulk metadata collection program started before the FISA court issued its first 2006 order authorizing the program under section 501. The Justice Department has disclosed that in May 2004, the OLC issued anopinion entitled: “Memorandum Regarding Review of the Legality of the [President’s Surveillance] Program.” Parts of that 2004 Memorandum discussing the warrantless acquisition of the contents of Americans’ communications were declassified and released in 2011. But at the time, the government had refused to acknowledge the existence of the bulk metadata surveillance and much of OLC memo, which apparently discussed authority for bulk collection, was blacked out.
Since the December 2013 official declassification of the fact that the bulk metadata collection pre-dated the court’s 2006 orders under section 501(215), Members of the Senate and the Center for National Security Studies have pressed for a new review and release of the 2004 OLC Memo that discusses any other potential authorities for bulk metadata collection. At her nomination hearing to be CIA General Counsel, Senator Wyden asked (see p. 5-6 in link) the then Principal Deputy Attorney General for the Office of Legal Counsel whether the opinion addressed bulk telephone metadata collection and if so, whether the OLC relied “at that time on a statutory basis other than the Foreign Intelligence Surveillance Act for the authority to conduct bulk telephony metadata collection?” Wyden was told that the opinion was still classified but that further classification review of the opinion would be appropriate.
The Center for National Security Studies has also sought declassification or at a minimum, pending further review, that the Justice Department simply identify what statute or statutes, if any, it identified as authority for bulk collection before the first FISC order in 2006.
The administration’s claim that the provisions of the USA Freedom Act would end bulk collection cannot be meaningfully assessed without this information.
Twice before, this administration has asked Congress to extend the sunset on section 501(215) without informing the public of its secret interpretation that the section could be and was being used to authorize the NSA’s bulk collection of Americans’ metadata. Surely the President, in ordering an end to such bulk collection, did not envision that his administration would again ask for statutory enactments while keeping secret key interpretations which could be used by this or a future administration to reinstate bulk collection, even if the USA Freedom Act is enacted.