Jacob Sullum

As Reggie Walton, the FISC's current chief judge, explained to The Washington Post, "The FISC is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing (government) compliance with its orders." Except that the FISC operates in secret, hearing only from the government, and people subject to NSA surveillance almost never have a chance to challenge it in court.

Even when the government is honest with the FISC, we cannot necessarily count on the court to protect our privacy. As a "white paper" released by the Obama administration on August 9 emphasizes, "fourteen different FISC judges" have approved the collection of everyone's telephone records under Section 215 of the PATRIOT Act, which authorizes court orders demanding "any tangible things" reasonably considered "relevant" to a terrorism investigation. If information about the entire population is "relevant," what isn't?

The white paper argues that Congress implicitly approved this amazingly broad interpretation of the law because it "twice reauthorized Section 215" after information about the NSA's phone record dragnet "was made available." How available was this information? Not very, judging from the objections lodged by more than 200 House members, including a chief author of the PATRIOT Act, after Snowden's revelations. Yet Obama claims the program is "fully overseen" by Congress.

Are you comfortable yet?


Jacob Sullum

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