A report in today's Guardian lays open the process followed by FISA court judge, Colleen Kollar-Kotelly, when she allowed NSA to "trawl" through "an enormous volume of communications."
The methods, known as pen registers and trap-and-trace devices, record the incoming and outgoing routing information of communications – traditionally phone calls made between individual users. Kollar-Kotelly ruled that acquiring the metadata, and not the content, of email and internet usage in bulk was harmonious with the “purpose” of Congress and prior court rulings – even though no surveillance statute ever authorized it and top officials at the justice department and the FBI threatened to resign in 2004 over what they considered its dubious legality.
“The court recognizes that, by concluding that these definitions do not restrict the use of pen registers or trap-and-trace devices to communication facilities associated with individual users, it is finding that these definitions encompass an exceptionally broad form of collection,” wrote Kollar-Kotelly in an opinion whose date is redacted. ...Guardian
What we're seeing here is a huge overreach on the part of the Bush administration -- and later the Obama administration -- based on a premise of executive privilege that would never hold up in a Supreme Court that actually does its job (something we haven't seen in so long that we'd hardly know how to recognize it).
While at times Kollar-Kotelly appeared in her ruling to be hesitant about granting NSA broad authorities to collect Americans’ internet metadata, “deference”, she wrote, “should be given to the fully considered judgment of the executive branch in assessing and responding to national security threats and in determining the potential significance of intelligence-related information.” ...Guardian
The executive branch... the President ...Bush/Cheney or Obama... simply cries "threat" (trust me!) and the deed is done. The assumption appears to be that the American people would rather lose democracy and all control of their self-governance than run the risk of terrorist threats to life and property.
(Would Washington have stood as tall in that boat crossing the Delaware if that he'd known how lazy and weak we would become about protecting our liberties?)
And the Supreme Court? Well, you already know...
Monday was also a busy day for the NSA’s bulk surveillance in the courts. The supreme court declined to take a case about the bulk phone records collection, while a judge on a lower federal court considered an injunction against the NSA. ...Guardian
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For what it's worth, there's a quasi-technical explanation for the Supreme Court's refusal to take the case. Scotusblog has this:
The EPIC plea was filed directly in the Court, without prior lower court action. The group requested that the Justices direct a judge of the secret Foreign Intelligence Surveillance Court to vacate an order he issued in April requiring a branch of the telephone giant Verizon to turn over to the government a vast array of data, including sweeps of U.S. telephone calls and Internet exchanges. The Court very rarely grants such a “writ of mandamus or prohibition.”
EPIC had contended that no other court was open to hear a challenge to orders of the FIS Court, so the Supreme Court should consider its case now. The Justice Department had answered that EPIC could attempt to pursue its case in lower courts first, although the government has attempted to thwart review of previous challenges.
