In 1991, the Supreme Court determined that evidence collection is "relevant" to an investigation if there was a "reasonable possibility" that it could produce important information, the Journal notes. That standard has generally been interpreted to exclude massive sweeps of information. Yes, knowing everything about everyone offers more than a reasonable chance of yielding information about crimes, but the cost, most courts have decided, is too great.
The FISC, however, allowed a looser standard. Because the NSA argued that its database of call records in essence couldn't generate relevant information unless it was comprehensive, the court decided that the huge metadata sweep was allowable.
When the Patriot Act came up for reauthorization in 2006, the standard under which data could be collected was the subject of debate. Its original language was more vague even than the "relevant" standard, vague enough to legalize without question the collection of internet metadata that had already begun. The word "relevant" was added, the Journal suggests, to partially appease those members of Congress that questioned the loose existing standard. But with the FISC's sign-off on a broadened definition of the word, that appeasement didn't matter anyway.
This redefinition naturally raises the question: Is the FISC beholden to the Supreme Court? The answer is certainly "yes," but until the Supreme Court evaluates the FISC's decisions — which it appears not to have done — the two exist in parallel. To that end, a D.C.-based privacy group is filing a petition with the Supreme Court to halt the NSA's surveillance system, The Times reports.
Move files out of the reach of the Freedom of Information Act.
The Associated Press reported this morning that Admiral William McRaven, commander of the U.S. Special Operations Command, admitting ordering files related to the raid on Osama bin Laden's compound in Pakistan removed from Department of Defense computers and sent instead to the CIA. McRaven didn't comment on the report, but the CIA insisted that it was the proper course of action.
The CIA, noting that the bin Laden mission was overseen by then-CIA Director Leon Panetta before he became defense secretary, said that the SEALs were effectively assigned to work temporarily for the CIA, which has presidential authority to conduct covert operations.
"Documents related to the raid were handled in a manner consistent with the fact that the operation was conducted under the direction of the CIA director," agency spokesman Preston Golson said in an emailed statement.
In effect, this makes the documents nearly impossible to request under the Freedom of Information Act. The AP notes that it requested files related to the raid under FOIA two years ago from the Department of Defense. But no files existed at Defense by then. And getting files from the CIA is trickier.
McRaven's directive sent the only copies of the military's records about its daring raid to the CIA, which has special authority to prevent the release of "operational files" in ways that can't effectively be challenged in federal court. The Defense Department can prevent the release of its own military files, too, citing risks to national security. But that can be contested in court, and a judge can compel the Pentagon to turn over non-sensitive portions of records.
CIA spokesman Golston insists this was not done to block FOIA requests. It simply has that effect — also ensuring that, for now anyway, the only version of what happened in Abbottabad that night is the one it chooses to share.