- Apr 24, 2013
- 1,200
About an hour after the White House said President Barack Obama had signed legislation ending the National Security Agency's bulk telephone collection program, the Justice Department told a secret court that the controversial spy program Edward Snowden disclosed could continue under the law.
That's according to a Justice Department memo (PDF)—released Monday—to the secret Foreign Intelligence Surveillance Court (FISA Court), which has authorized the snooping program 49 times in six-month intervals.
The memo notes that Congress did indeed end the bulk telephone metadata program with the passage of the USA Freedom Act and the president's signature on June 2. But the act also allowed for the program to be extended for six months to allow "for an orderly transition" to a less-invasive telephone metadata spying program.
"Congress recognized the need for an orderly transition period that preserves an important foreign intelligence collection capability until the Government may effectively avail itself of the new provisions for a targeted production," the Justice Department wrote.
The Justice Department also informed the FISA Court that the court need not abide by a federal appellate court's decision last month declaring the bulk collection program illegal. The agency told the secret court that 2nd US Circuit Court of Appeals' decisions "do not constitute controlling precedent for this Court."
In addition, the government told the court that the FISA Court's repeated approval of the program "continues to reflect the better reading" of the law.
Under the program that Snowden disclosed, the nation's telecoms forward to the National Security Agency the phone numbers of both parties in a call, calling card numbers, the length and time of the calls, and the international mobile subscriber identity (ISMI) number for mobile callers. The NSA keeps a running database of that information. The NSA says it queries the data solely to combat terrorism and that one party of a call must be believed to have been overseas.
The USA Freedom Act approved a variation of the phone-records spy program. Under the new legislation, the bulk phone metadata stays with the telecoms and is removed from the hands of the NSA. It can still be accessed with the FISA Court's blessing as long as the government asserts that it has a reasonable suspicion that the phone data of a target is relevant to a terror investigation and that at least one party to the call is overseas. The Constitution's Fourth Amendment standard of probable cause does not apply.
The new law slightly lifts the veil of the FISA Court's secrecy and provides for a public advocate in the courtroom.
The Justice Department's memo is its legal rationale for why the program can continue. The government's moving papers seeking a six-month renewal of the program have not been made public or have yet to be filed.
