The Privacy and Civil Liberties Oversight Board (PCLOB), an independent oversight agency, will release a report today concluding that the National Security Agency's (NSA) bulk telephone records collection program is illegal and ineffective. The New York Times reported on PCLOB's assessment and conclusion that PATRIOT Act Section 215 does not justify mass surveillance:
The program “lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value,” the report said. “As a result, the board recommends that the government end the program.”
PCLOB joins a growing consensus that the NSA should end its illegal and ineffective bulk metadata collection program, a program the American people only know about thanks to NSA whistleblower Edward Snowden.
Senators Ron Wyden (D-OR) and Mark Udall (D-CO) warned that the Executive branch had a twisted interpretation of Section 215. PATRIOT Act author Rep. James Sensenbrenner (R-WI) have said the mass surveillance is not what Congress intended in passing Section 215.
Federal Judge Richard Leon described the program as an "almost Orwellian" "likely unconstitutional" invasion of innocent Americans' privacy that would make Constitution author James Madison "aghast."
The White House's own review panel said the program "create[d] potential risks to public trust, personal privacy, and civil liberty," and "was not essential to preventing attacks."
With such a broad consensus, the Obama administration cannot fall back on the usual fear mongering or "legal" rationalizations, all of which have proven time and again to be either gross misrepresentations or blatant falsehoods intended to preserve the surveillance programs, surveillance which serve no legitimate national security purpose but compromise the constitutionally-guaranteed privacy rights of hundreds of millions of innocent Americans.
Since Snowden's revelations in June 2013, government officials have been referring to the bulk metadata surveillance program as the "215 program" - implying that Section 215 of the PATRIOT Act somehow authorizes the NSA to collect from a telecommunications provider all Americans' phone records on an ongoing basis.
The PCLOB report lays bear that the Executive Branch attempted to use Section 215 as the dubious legal justification for the mass surveillance program years after the program began and only after the public first glimpsed the tip of the NSA's domestic surveillance iceberg when the New York Times published its Pulitzer Prize-winning domestic surveillance story.
From NYT on today's PCLOB report:
The program began in late 2001 based on wartime authority claimed by President Bush. In 2006, the Bush administration persuaded the surveillance court to begin authorizing the program based on the Patriot Act under a theory the Obama administration would later embrace.
But the privacy board’s report criticized that, saying that the legal theory was a “subversion” of the law’s intent, and that the program also violated the Electronic Communications Privacy Act.
“It may have been a laudable goal for the executive branch to bring this program under the supervision” of the court, the report says. “Ultimately, however, that effort represents an unsustainable attempt to shoehorn a pre-existing surveillance program into the text of a statute with which it is not compatible.”
This sort of after-the-fact legal rationalization is unquestionably an abuse of power and a disturbing glimpse into how, since 9/11, government lawyers have twisted the law to rationalize and justify unjustifiable and unconstitutional government activities such as mass domestic surveillance and torture.
The PCLOB's clear conclusion that the bulk collection program is illegal is a welcome change from the typical Washington tendency to avoid harsh conclusions lest they create meaningful accountability for government abuses.
Now that a mountain of experts have advised that the NSA bulk collection program endangers liberty and privacy and doesn't stop terrorist attacks, there is simply no viable reason for the Obama administration to keep the program.