Jacob Sullum

Last Friday, in an interview with CNN, President Obama acknowledged that "the capabilities of the NSA are scary to people." The challenge for him, he explained at a press conference earlier this month, is "how do I make the American people more comfortable" with the National Security Agency's routine collection of information about the intimate details of our lives, including the destination, timing and length of every phone call we make.

The original plan was simply not to tell us about the government's mass surveillance of innocent people, because what you don't know can't discomfort you. Now that former NSA contractor Edward Snowden's leaks to the press have forced Obama into a debate he never wanted to have but nevertheless welcomes, the plan is to assure us that the NSA's scary capabilities are exercised under close supervision by the judicial and legislative branches. The only problem is that isn't true.

Last week, responding to a Freedom of Information Act lawsuit by the Electronic Freedom Foundation, the Obama administration finally released a heretofore secret 2011 ruling in which John Bates, then the chief judge of the Foreign Intelligence Surveillance Court (FISC), deemed one aspect of NSA surveillance, involving the collection of "wholly domestic" Internet communications, unconstitutional. The White House presented Bates' decision as evidence that we needn't worry about our privacy because federal judges are monitoring the spies who are monitoring us.

A close reading of the opinion, however, reveals that the FISC's ability to discover abuses hinges on the executive branch's willingness to admit them. "For the first time," Bates writes, "the government has now advised the Court that the volume and nature of the information it has been collecting is fundamentally different from what the Court had been led to believe."

A footnote provides further cause for concern: "The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program." One of the earlier cases involved the NSA's disregard for the rules governing searches of its phone record database. "Contrary to the government's repeated assurances," Bates writes, "NSA had been routinely running queries of the metadata using querying terms that did not meet the required standard for querying."

What is the other example of misrepresentation that Bates had in mind? We don't know, because that part of his opinion is blacked out.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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