A Patriot Act History Lesson: How Warnings Were Mocked in the Senate

Kyl went on to state:

  • "This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge?"

  • "The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term 'relevance.' It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records.

    "Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code."

So Feingold says that the "relevance" standard, in the context of secret national-security investigations, is extremely broad, and that his colleagues should recognize its implications for the privacy of innocent Americans -- and Kyl retorts that "relevance" is the same standard used all the time, that we're all familiar with it, and that it's "exactly" the standard used in criminal investigations.

There's no other way to put it: Feingold has been proved right, and Kyl wrong.

As the Wall Street Journal put it Monday, under the headline "Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering":

The National Security Agency's ability to gather phone data on millions of Americans hinges on the secret redefinition of the word "relevant."

This change -- which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden -- was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The 'relevant' language was added to the Patriot Act when it came up for reauthorization; it was signed by President Bush in 2006. 

The article goes on:

"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.

"I think it's a stretch" of previous federal legal interpretations, says Mr. Eckenwiler, who hasn't seen the secret ruling. If a federal attorney "served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court."

This is exactly how War on Terror hawks defeat civil libertarians: Warnings that overly broad language will be twisted by the national-security state are dismissed as paranoid time-wasting -- why, relevance is the same standard used in all sorts of contexts, nothing worrisome to see here! Later, when the overly broad language is exploited in exactly the way civil libertarians anticipated, the same coalition that insisted such measures wouldn't be permitted by the law suddenly claim that they're perfectly legitimate legal interpretations of duly passed and signed legislation.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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