During the winter of 2006, the U.S. Senate was debating the re-authorization of the Patriot Act. The legislation would ultimately pass by a wide margin, and George W. Bush signed it into law. But before that could happen, civil libertarians, led by then-Senator Russ Feingold, tried to amend the 2001 law. They warned that its overly broad language would permit government to pry into the privacy of innocent Americans and warned about the likelihood of executive branch "fishing expeditions."
Dismissive Senate colleagues scoffed at their concerns.
An exchange between Feingold and then-Senator Jon Kyl is illustrative of the way civil libertarians warned of coming abuses, only to be dismissed as hysterics needlessly wasting Senate time.
The scene takes place on the Senate floor on February 16, 2006. Feingold was trying to amend the Patriot Act, arguing that Section 215, a part of the law core to the NSA controversy, gives the government "extremely broad powers to secretly obtain people's business records." Said Feingold (emphases mine throughout):
The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records.
But the core issue with Section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report -- "relevance" -- will still allow government fishing expeditions. That is unacceptable.
He went on:
Next, let me turn to judicial review of these Section 215 orders. After all, if we're going to give the government such intrusive powers, we should at least people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process.
Today we know that the government has invoked Section 215 to obtain call data on all Verizon customers, and has very likely been used to collect data on tens or hundreds of millions of Americans who are customers of all the major telecom carriers. Feingold was exactly correct: The sensitive business records of innocent, law-abiding Americans were seized because the minimization standard, "relevance," turns out not to minimize affected Americans at all. Additionally, it has so far proved not just very difficult but impossible to get meaningful judicial review.
But back in 2006, when Feingold remained a lonely voice in opposition to Patriot Act re-authorization, look at how Kyl, speaking on the same day, derisively dismissed his concerns.
Said Kyl, opposing Feingold's suggested amendments:
- "There is no basis for delaying the Patriot Act."
- "What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year."
"I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously."
- "I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on... I thought I would take two of the amendments -- we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the Patriot Act -- the kind of amendments that would be offered. It shows how unnecessary this approach is."
- "This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations .... The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror ... this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order .... It serves no substantial interest but, as I said, can be very damaging to our national security."
So thus far, Kyl had literally asserted not just that Feingold's amendments were, on balance, wrongheaded, but that they served no purpose or interest at all -- and had suggested that the very effort to amend the Patriot Act isn't just purposeless but also a sign that Feingold didn't take Bin Laden seriously -- which is to say, the cheapest rhetorical trick in the Senate playbook.
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.
"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.