Jacob Sullum
In "The Hitchhiker's Guide to the Galaxy," Arthur Dent discovers that the plans for a highway project involving demolition of his house have been "on display" in the basement of a government building at "the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard.'" The Obama administration has a similar idea of what adequate notice means in the context of the National Security Agency's domestic surveillance activities.

The administration argues that Congress approved the NSA's mass collection of Americans' phone records under Section 215 of the PATRIOT Act because it "twice reauthorized Section 215" after information about the program "was made available." A ruling by the Foreign Intelligence Surveillance Court (FISC) published last week endorses this view, even though it appears the existence of the NSA's phone record database came as news to most members of Congress when it was revealed last May by former NSA contractor Edward Snowden.

According to the "doctrine of ratification," FISC Judge Claire Eagan notes in the August 29 opinion, "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." She allows that "in the national security context where legal decisions are classified by the executive branch and, therefore, normally not widely available to members of Congress for scrutiny, one could imagine that such a presumption would be easily overcome."

But "that is not the case here," Eagan says, because the executive branch gave members of the House and Senate intelligence committees a report describing the NSA's phone record dragnet, and that document was "made available to all members of Congress." She adds in a footnote that "it is unnecessary for the court to inquire how many of the 535 individual members of Congress took advantage of the opportunity to learn the facts about how the executive branch was implementing Section 215."

Such an inquiry certainly would be inconvenient for the Obama administration. Eagan reveals in another footnote that legislators were informed of the opportunity to view the report via "Dear Colleague" notices, commonly ignored messages they have been conditioned to treat as spam.


Jacob Sullum

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