WASHINGTON -- In a declassified and heavily redacted report on a controversial Patriot Act provision, the Justice Department’s inspector general found that the government had failed to implement guidelines limiting the amount of data collected on Americans for seven years.
Section 215 of the Patriot Act, which is set to expire June 1 unless Congress reauthorizes it, has been the legal basis for the intelligence community’s bulk metadata collection. As a condition for reauthorization back in 2005, the Justice Department was required to minimize the amount of nonpublic information that the program gathered on U.S. persons. According to the inspector general, the department did not adopt sufficient guidelines until 2013. It was not until August of that year -- two months after the bombshell National Security Agency disclosures by Edward Snowden -- that Justice began applying those guidelines in applications to the Foreign Intelligence Surveillance Act court, the secretive body that approves government surveillance requests.
“It’s an indictment of the system of oversight that we’ve relied upon to check abuses of surveillance powers. The report makes clear that, for years, the FBI failed to comply with its basic legal requirements in using Section 215, and that should trouble anyone who thinks that secret oversight is enough for surveillance capabilities that are this powerful,” Alex Abdo, a staff attorney at the American Civil Liberties Union, told HuffPost.
“The report confirms that the government has been using Section 215 to collect an ever-expanding universe of records. Given the timing, it’s particularly significant,” he continued referring to the looming expiration date.
At times during that seven-year period, the report noted, the government blocked the Justice Department's Office of the Inspector General from determining whether the minimization guidelines had been implemented:
The FBI in the past has taken the position, over the OIG’s objections, that it was prohibited from disclosing FISA-acquired information to the OIG for oversight purposes because the Attorney General had not designated anyone in the OIG as having access to the information for minimization reviews of other lawful purposes, and because there were no specific provisions in the procedures authorizing such access.
Declassification of the inspector general’s findings comes at a critical juncture for the future of NSA spying. A federal appellate court recently held that the bulk metadata collection program is not authorized by the Patriot Act. A large majority of congressional lawmakers favor replacing the existing legislation with a reform bill that at least curbs the government’s authority to collect information on Americans. There is, however, a small group in Congress who insist that a clean reauthorization of the Patriot Act is necessary to protect the country from terrorist attacks.
The reform bill, called the USA Freedom Act, passed overwhelmingly in the House. The Senate is expected to vote on either that bill or a two-month reauthorization of the Patriot Act later this week. The House, which is scheduled to go into recess Thursday for a week, has indicated it will not extend its session to vote on a Patriot Act extension. That move is essentially an ultimatum to Senate Majority Leader Mitch McConnell (R-Ky.): pass the USA Freedom Act or let the existing surveillance law expire with no replacement.
As it stands, the Senate may or may not be able to pass the USA Freedom Act. McConnell and several members of his party oppose any move to rein in the NSA’s surveillance authority. Meanwhile, Sen. Rand Paul (R-Ky.) opposes the reform bill on the grounds that it does not go far enough in limiting the government’s ability to spy on Americans.
During his 10-and-a-half hour speech on the Senate floor Wednesday, Paul outlined several amendments that he and Sen. Ron Wyden (D-Ore.) hoped to add to the bill. With the upper chamber scheduled to recess on Friday, McConnell is unlikely to allow for a lengthy amendment process -- particularly to debate changes that would further constrain the intelligence community.
Though publicly released Thursday, the Justice Department’s report had been made available to lawmakers in February. Several of its findings echo key concerns raised by members of Congress throughout the NSA debate.
“For years, any American's communication data could have been tracked and collected by the government, whether or not they were suspected of a crime,” said Sen. Chris Coons (D-Del.) on Wednesday, when he briefly joined Paul on floor. “That program has been carried out under Section 215 of the Patriot Act based on flimsy or mistaken interpretations of the original law, all in the name of our national security.”
“There is not one clear, publicly confirmed instance of a plot being foiled because of this Section 215 program,” Coons added.
The inspector general found that data collected under Section 215 increased over the years and was not limited to phone records. At times, the government requested copies of business ledgers, receipts, and medical and educational records.
“The type of information that is categorized as metadata will likely continue to evolve and expand,” the report said. “The [National Security Division] and [National Security Law Branch] attorneys told us that other terms used to define metadata themselves lack standardized definitions and that applying them to rapidly changing technology can be difficult.”
The government's requests were also not limited to material about individuals involved in an FBI investigation. And while defendants of the program insist that information on Americans is gathered as an incidental byproduct rather than a targeted effort, Abdo noted that the definition of a “U.S. person” is still classified in the recently released report:
The inspector general's report focused on the government’s use of Section 215 between 2007 and 2009. In that two-year period, every Justice Department request to the FISA court for spying authority was granted -- a fact that would seem to bolster critics' argument that the secret court's process needs a permanent privacy advocate.
“Without an adversarial process, you really can’t even have a judicial process,” Paul said Wednesday evening. “The FISA court only hears from one side -- the government.”
While the reform bill that passed the House would add a slot for a privacy advocate, Paul and the ACLU have both noted that the legislation still gives the court the authority to decide if and when to appoint someone to the job.