There’s a significant discrepancy, one that deserves more attention, between what the NSA told the Foreign Intelligence Surveillance Court five years ago about the call-tracking program and what the agency is telling ordinary federal courts about the program now.  It told the FISC five years ago that the program was indispensable, but it’s saying something quite different today.

From recently released documents, we know that in 2008 the NSA asked the FISC to reauthorize the call-tracking program, a program the FISC had first authorized two years earlier. The FISC obliged, issuing an order that permitted the NSA to continue collecting information about essentially all telephone calls made or received on U.S. telephone networks, subject to “minimization requirements” restricting the government’s access to information collected under the program. In reauthorizing the program, the FISC relied on representations from the government about the program’s importance and the feasibility of tracking suspected terrorists’ associations through other, less intrusive means. We know about these representations because in his March 2009 opinion describing the NSA’s “frequent[] and systemic[]” violation of the minimization requirements, Judge Reggie Walton had this to say:

On December 12, 2008, the [FISC] re-authorized the government to acquire the tangible things sought by the government in its application in the above-captioned docket (“BR 08-13”). . . . The Court found reasonable grounds to believe that the tangible things sought are relevant to authorized investigations being conducted by the [FBI] to protect against international terrorism. . . . In making this finding, the Court relied on the assertion of the [NSA] that having access to the call detail records “is vital to NSA’s counterterrorism intelligence mission” because “[t]he only effective means by which NSA analysts are able continuously to keep track of all affiliates of one of the aforementioned entities [who are taking steps to disguise and obscure their communications and identities], is to obtain and maintain an archive of metadata that will permit these tactics to be uncovered.”

A few things about this passage are worth noting. First, it makes clear that the government represented to the FISC not simply that the call-tracking program was useful but that it was crucial—“vital”—to the NSA’s mission. Second, it makes clear that the government represented that there were no less-intrusive means of achieving its objectives. The call-tracking program, the NSA told the FISC, was “the only effective means” of “keep[ing] track” of suspected terrorists’ associations. Third, the passage makes clear that the FISC relied on the government’s representations. In other words, the FISC reauthorized the program because the government said that the program was indispensable.

It seems significant, then, even remarkable, that the government has not made similar representations in the Southern District of New York, where the ACLU’s challenge to the call-records program is pending before Judge William Pauley.  In the declarations in which one might expect to find the phrases “only effective means” and “vital to the NSA’s counterterrorism mission,” here is the language one finds instead (with my italics):

  • The call-tracking program is “one method that the NSA has developed to accomplish the objective” of “[d]etecting threats by exploiting terrorist communications.” Declaration of FBI Acting Assistant Director Robert J. Holley at ¶5.
  • “[E]xperience has shown that NSA metadata analysis, in complement with other FBI investigatory and analytical capabilities, produces information pertinent to FBI counter-terrorism investigations, and can contribute to the prevention of terrorist attacks.” Declaration of FBI Acting Assistant Director Robert J. Holley at ¶9.
  • The call-tracking program is “[o]ne method that the NSA has developed” to “detect any terrorist threat inside the U.S.” Declaration of NSA Signals Intelligence Director Teresa H. Shea, National Security Agency at ¶7.
  • The call-tracking program is “[o]ne method that the NSA has developed” to “detect any terrorist threat inside the U.S.” Declaration of NSA Signals Intelligence Director Teresa H. Shea, National Security Agency at ¶7.
  • “Without the ability to obtain and analyze bulk metadata, the NSA would lose a tool for detecting communications chains that link to identifiers associated known and suspected terrorist operatives.” Declaration of NSA Signals Intelligence Director Teresa H. Shea, National Security Agency at ¶58.

The government’s response to the petition filed by the Electronic Privacy Information Center uses similarly weak language: Without the call-tracking program, the government writes, “it may not be feasible for the NSA to identify chains of communications that cross different telecommunications networks.”

It seems to me that there’s a lot of distance between the representations the government was willing to make to the FISC in 2008 and the representations it’s willing to make now. There’s a lot of distance, that is, between “the only effective means,” on the one hand, and “one method that the NSA has developed,” on the other. We could speculate about the reasons for the shift in the NSA’s language. Perhaps the government’s assessment of the program’s importance has changed since 2008. Perhaps the government was willing to say things in an ex parte proceeding that it’s not willing to say in an adversarial one. Or perhaps the fallout to DNI James Clapper’s “least untruthful statement” has led intelligence officials to take more care in making factual claims about the NSA’s surveillance activities.

Whatever the reason for the government’s shift, though, it’s a shift that utterly undermines the representations the government made to the FISC in 2008—representations that the FISC itself said it relied on in determining that the program should be reauthorized. If the government’s “only effective means” representation was crucial to the FISC’s reauthorization of the program in 2008, as Judge Walton’s opinion suggests it was, shouldn’t the government’s quiet retreat from that representation lead the FISC to withdraw its authorization for the program?

And if the government is no longer willing to say in court what it said in 2008, isn’t it fair to say that the government is asking Judge Pauley to hold something that the FISC has never held—namely, that the call-tracking program is lawful and reasonable under the First and Fourth Amendments even if it’s not “vital” to the NSA’s counterterrorism efforts, and even if there are less intrusive means that the NSA could employ to achieve the same ends?

And if the government is no longer willing to say to federal judges that the program is crucial and the least-intrusive means of accomplishing its counterterrorism objectives, isn’t it reasonable for us to ask why intelligence officials are still making those claims to the public?

ADDENDUM: As Marty Lederman observed in these two posts, although in its White Paper and its opening brief in ACLU v. Clapper the government embraced Judge Eagan’s argument that the collection satisfied section 215 because it is “necessary” for FBI counterterrorism investigations, the Solicitor General’s Office abandoned that argument in its Supreme Court filing in EPIC, perhaps because it realized that it would be very difficult to satisfy such a threshold (or because it was unable to find declarants who would attest to such a strong claim). The government is now arguing instead that the statute doesn’t require it to show that the call-tracking program is necessary or indispensable or “the only effective means”—only that the program “facilitate[s] the government’s use of investigative tools.”  As Marty explains in the second of the two posts, and as we at the ACLU explain at pages 11-12 of this brief, this new theory of the statute—apparently not the theory adopted by the FISA Court—proves far too much, because adopting it would allow the government to collect virtually any system of records.  After all, access to virtually any such system would facilitate investigations.