No sooner had the Obama administration released a white paper laying out the legal justification for its mass phone data collection program than legal experts began to poke holes in it.
Last Friday, as part of President Barack Obama’s attempt to address criticism of the National Security Agency’s surveillance programs revealed by former intelligence contractor Edward Snowden, the administration released a document intended to explain the legal reasoning behind the collection of data on nearly all Americans' phone calls, including the numbers on the call, call time, and duration. But legal experts and civil liberties advocates were quick to point out that the legal reasoning behind the program is weak.
One important complaint hinges on the idea of “relevance,” an already hotly debated issue at the core of whether the program is legal. The Foreign Intelligence Surveillance Court, the secret tribunal which oversees the intelligence community’s operations, has found that the phone collection program is legal under Section 215 of the USA Patriot Act, also called the “business records” provision. That provision requires that records collected by the government under the statute must be “relevant” to a foreign intelligence investigation. Over the past several weeks, the government has argued strenuously that all phone records are relevant, as previously detailed by the International Business Times, while critics argue that they are not.
But the white paper, which was intended to back up the relevance case, was unconvincing to experts. To civil liberties advocates who already believe it is illegal, the paper failed to put up a good fight.
“The document they put out was not, sort of, as heavy-hitting as it should have been,” said Orin Kerr, a professor at the George Washington University Law School. If the FISC opinion legalizing the program says what the white paper does, “then it’s not a great opinion.”
The problem with the document, Kerr said, is that it was “one-sided” and failed to deal with important counter-arguments. In a post on Monday on the legal blog Volokh Conspiracy, Kerr pointed out some serious counterpoints to the white paper, including important precedents on the relevance issue that the paper fails to address, as well as “weak” precedents that the administration chose to rely on.
A second reason the precedents cited in the paper are raising flags is that many of them, including some on the relevance issue, are cases that were decided after the FISC originally authorized the program in 2006. “What cases were being relied on beforehand?” asked Brett Max Kaufman, a national security fellow at the American Civil Liberties Union. “And if these cases are better, and people aren’t convinced, then that raises some troubling implications about what is actually in the real authorizations.”
The public doesn't know who wrote the white paper as well as a number of other facts about the government's legal reasoning. So there could be an explanation for why the white paper wasn’t “as persuasive as it could be,” Kerr said. Or, “it may be that they don’t have better arguments.”