The Electronic Privacy Information Center (EPIC) has
sent a letter to the chairs of the judiciary and intelligence committees charging that the NSA is illegally obtaining domestic telephone records, and suggesting that those chairs might want to actually do something about it, since it is their job.
The best part of the letter [pdf] is the sourcing for their legal opinion.
There is simply no precedent for the FISC to authorize domestic surveillance. As Justice Alito, writing for the Supreme Court in a case concerning the Foreign Intelligence Surveillance Act, explained just a few months ago,
Congress enacted the Foreign Intelligence Surveillance Act (FISA) to authorize and regulate certain governmental electronic surveillance of communications for foreign intelligence purposes. See 92 Stat. 1783, 50 U.S.C. §1801 et seq.; 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §§ 3.1, 3.7 (2d ed. 2012) (hereinafter Kris & Wilson).
In FISA, Congress authorized judges of the Foreign Intelligence Surveillance Court (FISC) to approve electronic surveillance for foreign intelligence purposes if there is probable cause to believe that “the target of the electronic surveillance is a foreign power or an agent of a foreign power,” and that each of the specific “facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.” §105(a)(3), 92 Stat. 1790; see §§105(b)(1)(A), (b)(1)(B), ibid.; 1 Kris & Wilson § 7:2, at 194-195;
id., § 16:2, at 528-529. (emphasis added)
With the Verizon Order, the FISC went beyond its legal authority when it sanctioned a program of domestic surveillance unrelated to the collection of foreign intelligence. [...]
By name, history, and intent, it is the domain of the Foreign Intelligence Surveillance Court, acting pursuant to the Foreign Intelligence Surveillance Act, to authorize data collection concerning foreign intelligence. As the order in the Verizon matter purposefully excluded such data, it was beyond the scope of the Foreign Intelligence Surveillance Court and therefore unlawful.
In addition to demanding that committees in both the House and the Senate actually conduct real oversight of the program and determine whether the court exceeded its authority with the Verizon order, EPIC has
filed a Freedom of Information Act request with the Department of Justice seeking the government's legal justifications that allowed NSA to conduct domestic surveillance under the FISA court, when the FISA court is limited to investigations concerning the collection of foreign intelligence.
Maybe EPIC will get a better answer from Congress and from the administration than "trust us."