The Legal Argument for the NSA’s Telephone Metadata Collection

Posted May 14, 2015 at 5:10am

Former Attorney General Michael Mukasey  argues that there are a number of legal errors in the recent federal appeals court ruling that the NSA’s bulk telephony metadata collection program was not authorized by the USA Patriot Act.  

“The panel found that when the Patriot Act, passed in the aftermath of 9/11, permitted the government to subpoena business records ‘relevant’ to an authorized investigation, the statute couldn’t have meant bulk telephone metadata… Yet the judicial panel failed to consider the purpose of the statute it was analyzing. The Patriot Act concerns intelligence gathering, which is forward-looking and necessarily requires a body of data from which potentially useful information about events in the planning stage may be gathered… A base of data from which to gather intelligence is at least arguably ‘relevant’ to an authorized intelligence investigation.”  

“Equally serious an error is the panel’s suggestion that many, perhaps most, members of Congress were unaware of the NSA’s bulk metadata collection when they repeatedly reauthorized the statute, most recently in 2011. The judges suggest that an explanation of the program was available only in ‘secure locations, for a limited time period and under a number of restrictions.’ In addition to being given briefing papers, lawmakers had available live briefings, including from the directors of the FBI and the National Intelligence office.”