Congress may be preparing to reinforce two horrible FISA Court decisions and an abusive government search with no debate in the coming weeks: a decision to give national security orders unlimited breadth, one making it legal for the government to investigate Americans for activities protected under the First Amendment, and the FBI’s “back door” searches of Americans’ communication content collected under the FISA Amendment Act Section 702 authority.
On Tuesday, the ACLU and the Department of Justice argued about the legality of the NSA’s phone dragnet program before the 2nd Circuit Court of Appeals in New York. Much of the discussion focused on the implications of the government’s theories that it can collect all phone records in the United States based on a claim they are “relevant” to standing terrorism investigations. “You can collect everything there is to know about everybody and have it all in one big government cloud,” said Judge Gerard Lynch, describing the implications of the government’s theories to Assistant Attorney General Stuart Delery.
But the ACLU and the government also engaged in an equally important debate — on whether the FISA Court’s interpretation of the word “relevant” overstepped Congress’ intent – focused on whether Congress had backed FISC’s definition of “relevant” by reauthorizing the Patriot Act twice.
The executive branch and the FISA Court have spent the last 15 months arguing that Congress “ratified” the expansive interpretations on which the phone dragnet program relies when it reauthorized the Patriot Act in 2010 and 2011 because, having been informed of the program, Congress extended the Patriot Act without changing that language. “When Congress reenacts a statute without change,” the administration said in a white paper on the phone dragnet in August 2013, ”it is presumed to have adopted the administrative or judicial interpretation of the statute if it is aware of the interpretation.” Three federal judges have bought that claim, relying on it to rule the program is legal.