Shorter Andrew McCarthy: The FISA Court Is What Its Critics Claim–A Rubber Stamp. And That’s A Good Thing.

Congressman James Sensenbrenner, currently  formerly the Chairman of the House Judiciary Committee, says that the Obama Administration is violating the terms of the Patriot Act with the wholesale collection of “meta-data” from cellphone companies.

Earlier this month, the Guardian reported on the Obama Administration’s dragnet collection of phone data with rubberstamp approval by a Foreign Intelligence Surveillance Act (FISA) court. The scope of the NSA’s metadata program – peering into the lives of hundreds of millions of innocent Americans – is incredibly troubling. There is no legitimate explanation for tracking the numbers, locations, times and duration of the calls of every American.The collection and retention of all telephone records coming in and out of the United States is excessive and does not fall within the guidelines of Section 215.

Andrew McCarthy thinks the reported collection is perfectly legal under the terms of the Patriot Act.

Section 215 expressly permits the government to obtain the business records of American citizens. Furthermore, it does not require that either foreigners or Americans be “targets” or suspects in a terrorism investigation before their business records may be obtained. It merely requires the executive branch to have reasonable grounds to believe the records are “relevant” in some way to a national-security investigation — not to prove that it has such grounds, but merely to state that such grounds, in the executive’s judgment, exist.

In subsection (b)(2), Congress provided three broad examples of how business records could be “presumptively relevant” to an authorized investigation. These involve records that “pertain to” (i) “a foreign power or an agent of a foreign power”; (ii) “the activities of a suspected agent of a foreign power who is the subject of such authorized investigation”; or (iii) “an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation.” Notice, however, that the statute frames these as nonexclusive examples of how records could be relevant. Significantly, there is no hard limitation on what the executive branch may deem to be “relevant.”

(Emphasis mine)

That’s unlimited police state nonsense.

Statutory requirements aren’t “examples”. They either authorize specific things or they don’t. Try telling the IRS, “I took your list of deductions as “examples” but since there were “no hard limitations” on what I deem to be a “deduction”, I just went ahead and credited myself with the power to come up with a few more”.

The criteria outlined in (b)(2) of Section 215 are the only cases in which the Congress has authorized the production of records (within the Patriot Act/FISA Court). In order to collect the records of someone the government has to be able to show that they fit into one of those three categories. This isn’t optional. It isn’t an invitation to find ever wider definitions that would eventually ensnare EVERY America who uses a cellphone. It’s the law. Full stop. End of story

To say they are nothing more than the noodlings of the Congress or a jumping off point for an active and imaginative executive branch implies a level of possible lawlessness that is breathtaking. Congress gave a specific grant of authority to the executive here; that they didn’t rule all other possible grants out doesn’t mean the executive can simply claim those other situations are OK too. If that were the case, why bother picking 3? Or any? Congress isn’t a consulting firm with expertise in investigative lines the Department of Justice might not have thought of. It’s a lawmaking body that either says you can or can’t do certain things.

.

McCarthy however gets to this flawed, open-ended executive power grab by conveniently ignoring part of what comes right before what he quotes. He’re what he left out.

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

He actually argues that the Court has to accept that required “statement of facts” at face value.

Section 215 expressly permits the government to obtain the business records of American citizens. Furthermore, it does not require that either foreigners or Americans be “targets” or suspects in a terrorism investigation before their business records may be obtained. It merely requires the executive branch to have reasonable grounds to believe the records are “relevant” in some way to a national-security investigation — not to prove that it has such grounds, but merely to state that such grounds, in the executive’s judgment, exist.

(All emphasis is mine)

The biggest tell that McCarthy is wrong is the word “if”. That’s a condition. Who exactly, if not the court to which the application is being made, is to determine if the conditions are met? According to McCarthy the court has no role in determining whether or not the executive actually fulfills the conditions of the statute. What exactly is the purpose of the court then? A mere repository of executive assertions? Seems the DoJ could house that all by itself. That would save time and money.

McCarthy is right that the governments list of desired material is “presumptively relevant” but ONLY IF  the government shows the desired records falls into one the 3 criteria. Criteria McCarthy claims are mere suggestions. “If” places a specific duty…”if” the government can “show” to the court that the subject fits into the categories then you can have the records”. McCarthy brushes by this inconvenient bit of basic logic and grammar in pursuit of a nearly unchecked and uncheckable executive power by insisting “show” means “assert” and not as in every other judicial action “prove”.

In fact, the only decision McCarthy seems to allow the Court to make is that the investigation can’t be based “solely” on First Amendment grounds of an “American person“.

To accept McCarthy’s reading of the statute vice Sensenbrenner’s you have to accept the charge against the FISA Court…it’s merely a procedural rubber stamp and the three categories of people open to investigation are simply examples and not congressionally enacted limits.

What I think McCarthy is getting at is that if the executive says “this is national security related” that really ends any input from the other branches as Article II covers it all. Sure for image purposes he’ll allow Congress to have a little input but it’s not necessary really. And the courts? They can look at what the executive is doing but they can’t touch it.

This kind of zealotry for unchecked power is exactly what the Constitution is designed to prevent.

I’m not sure what’s more frightening, that people like McCarthy populate the government or that his interpretation of the statue as constructed is the one the Obama administration and the FISA Court agrees with. Either way, things have to change and the FISA Court, as currently constituted, is simply unacceptable.

About Drew

I blog about politics and hockey because I sort of understand those things. I'd blog about women but I'll never understand them.

Posted on June 24, 2013, in Uncategorized. Bookmark the permalink. 2 Comments.

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