August 9, 2013 | By Cindy Cohn

Obama Administration Releases Previously Secret Legal Opinion on NSA's Associational Tracking Program

Congress Does Not Hide Elephants in Mouse Holes

The Administration released a White Paper on Friday that summarized its claimed legal basis for the bulk collection of telephony metadata, also known as the Associational Tracking Program under section 215 of the Patriot Act, codified as 50 U.S.C. section 1861. While we’ll certainly be saying more about this analysis in the future, the paper makes one central point clear:

There is no direct authorization for the Associational Tracking Program in Patriot Act section 215.

Nowhere does the statute say that the NSA may conduct bulk collection and analysis of the phone records of nonsuspect, nontargeted Americans on an ongoing basis, including requiring the production of records that haven’t even been produced yet. 

It could, of course. Congress could have said that bulk collection is allowed and a properly drafted statute would also define “bulk” collection in a way that everyone can understand and isn't full of word games.  That statute would not have been constitutional (since the program isn't constitutional), but would at least say what the the Administration wishes section 215 did.

The plain meaning of the statute fails to reach their breathtaking and unprecedented activities and it isn't even ambiguous about it. So this leaves the Administration to try to do some fancy legal dancing -- stretching terms like “tangible things” and “relevance” beyond recognition and claiming that they get prospective associational information (as opposed to already stored information) about every American, 24 hours per day, 7 days per week and keep it for five years not because Congress expressly allowed it, but because “nothing in the text” says that they cannot.  Really.

This kind of argument is best addressed in a comment by Justice Scalia in a 2001 Supreme Court case called Whitman v. American Trucking: “Congress does not hide elephants in mouse holes.”

Even the author of the Patriot Act, Rep. Jim Sensenbrenner (R-WI) says the executive branch has grossly distorted the Patriot Act’s intent. He has said he is “extremely disturbed” by the administration’s interpretation and does “not believe the released FISA order is consistent with the requirement of the Patriot Act.” He added: “How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?”

There’s much that could be said about the legal analysis in the paper, both statutory and constitutional, and we look forward to saying it in our new case challenging the Associational Tracking Program, First Unitarian Church v. NSA, as well as in our Jewel v. NSA case, pending since 2008.  But any analysis of the government’s legalistic parsing of the legislative language has to start with the fact that, to believe the government, you have to believe that Congress intended to allow NSA to collect of all of the phone records of all Americans by hiding it in, at best, extremely strained interpretations of the statute that otherwise simply does not authorize bulk collection.

We don’t think the government’s statutory interpretations are even remotely correct. But now that the government has finally put its legal rationales on the table (seven years after we started trying to get them to), we hope to finally be able to fight this out in the place where competing interpretations of federal statutes should be decided: in the public federal courts where more than one side gets to argue.

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