NSA collecting meta data of all Verizon phone calls in the United States is illegal, according to Rep. Jim Sensenbrenner — UPDATED

Wisconsin Congressman James Sensenbrenner stated on Bill Bennet’s Morning in America radio show today that the NSA collecting of meta data of domestic phone calls from Verizon violates Section 215 of the USA Patriot Act.

We know that Section 215 is relevant because the Obama administration has stated the collection of this data was authorized by the FISA Court pursuant to Section 215.  That section refers to orders by the FISA Court directing the turnover of business records.  The meta data being turned over to NSA by Verizon constitute business records.

Sensenbrenner bases his claim on the fact that Section 215 only authorizes such an order pursuant to an authorized investigation of a specific person who is suspected of planning or carrying out terrorist acts.  It does not authorize the FISA Court to order the turnover of business records relating to persons not named as being suspected of terrorist activity.  It also does not authorize the   turnover of business records related solely to domestic matters. In other words, the date, time and phone numbers of calls either in foreign countries or from or to a number in a foreign country is what may be obtained.  Not the date, time and phone number of calls wholly within the United States.  What the NSA is doing is a dragnet operation. Sensenbrenner claims that only specifically targeted operations against an actual suspect are authorized by the Patriot Act, and only pursuant to a specifically authorized investigation, and only records with foreign connections may be covered by an order of the FISA Court.

It appears the Rep. Sensenbrenner is right.  Here is the full text of Section 215 of the USA Patriot Act: [all bold type except in the headings was added by me for emphasis]

SEC. 215. ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.
Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:

`SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.
`(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

`(2) An investigation conducted under this section shall–

`(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
`(B) not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
`(b) Each application under this section–

`(1) shall be made to–
`(A) a judge of the court established by section 103(a) [FISA Court]; or
`(B) a United States Magistrate Judge under chapter 43 of title 28, United States Code, who is publicly designated by the Chief Justice of the United States to have the power to hear applications and grant orders for the production of tangible things under this section on behalf of a judge of that court; and
`(2) shall specify that the records concerned are sought for an authorized investigation conducted in accordance with subsection (a)(2) to protect against international terrorism or clandestine intelligence activities.
`(c)(1) Upon an application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application meets the requirements of this section.

`(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a).

`(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

`(e) A person who, in good faith, produces tangible things under an order pursuant to this section shall not be liable to any other person for such production. Such production shall not be deemed to constitute a waiver of any privilege in any other proceeding or context.

`SEC. 502. CONGRESSIONAL OVERSIGHT.
`(a) On a semiannual basis, the Attorney General shall fully inform the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate concerning all requests for the production of tangible things under section 402.

`(b) On a semiannual basis, the Attorney General shall provide to the Committees on the Judiciary of the House of Representatives and the Senate a report setting forth with respect to the preceding 6-month period–

`(1) the total number of applications made for orders approving requests for the production of tangible things under section 402; and
`(2) the total number of such orders either granted, modified, or denied.’. 

The dragnet operation of the NSA is not pursuant to “an authorized investigation” in which “international terrorism or clandestine intelligent activities” are suspected, as the above section requires.  It is the collection of information on every American on a total scale.  Unless it is reasonable to suspect every American of terrorism, seizure of all the business records on every single domestic phone call placed through Verizon is not authorized by the Patriot Act.  In any case, suspicion of such activities wholly within the United States and not involving communication to or from a foreign county are outside the jurisdiction of the FISA Court and that court exceeded its jurisdiction in issuing the order.  A time-honored legal principle is that anything done by any court without proper jurisdiction is a nullity.

This whole thing is made to look silly since Obama has assured us that the war on terror has already been won, and Al Qaeda is on the run.  He says that every time he gets a chance, so this NSA dragnet operation is apparently not related to anything to do with international terrorism, further removing it from any legitimacy under the USA Patriot Act.

So what is it for?  Why are they doing this?

UPDATE:  Au Contraire: Andy McCarthy disagrees, Congressman Sensenbrenner is wrong on Patriot Act record.

McCarthy says Section 215 authorizes targeting American citizens.  All 310 million of them at once? McCarthy says the business records belong to the service provider, not the user of the service.  Yeah, so?  McCarthy says Section 215 authorizes gathering this information for purely domestic purposes.  No, Section 215 allows the FISA Court to issue an order to the collection of business records to protect against international terrorism.  It might be worth remembering that FISA stands for Foreign Intelligence Surveillance Act.  Spying on 310 million Americans is not necessary to protect against international terrorism, and they aren’t doing it for that purpose.  The executive branch of government is in the control of Democrats and they’re doing it solely for domestic political purposes.  Sensenbrenner is right, McCarthy is wrong.

UPDATE 6/13: In a dramatic exchange Wednesday on Capitol Hill, Sen. Jeff Merkley (D-Ore.) demanded National Security Agency chief Keith Alexander explain why the agency was legally authorized to obtain his personal cellphone data.

Waving his Verizon phone from his seat, Merkley asked Alexander to explain “what authorized investigation gave you the grounds” to seize information on his calls and those of millions of other Americans.

Rep. Merkley is quoting Section 215 of the USA Patriot Act, giving further support to Rep. Sensenbrenner’s claim that this so-called “PRISM” caper violates the USA Patriot Act, and undermines Andy McCarthy’s thesis that Sensenbrenner is wrong.   Merkley is a Democrat!

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