Senator Blumenthal and FISA

Richard Blumenthal (D-CT) spoke at the Law School this afternoon about the FISA court, and various pieces of legislation he is proposing that would reform some of the ways it works. For example, one proposed law would change the way the judges are appointed--Linda Greenhouse this morning notes that they are almost all Republicans, probably because they have all been appointed by John Roberts. I can't comment on the specifics of his proposals and others he is co-sponsoring, but I was glad to hear him acknowledge so forthrightly that most of Congress, including many who were involved in writing the enabling legislation, are surprised at how broadly the laws have been interpreted. He pointed in particular to the very broad (unfalsifiable, we might say) interpretation of what is allegedly "relevant" to a foreign intelligence issue and therefore OK to search, Fourth Amendment notwithstanding.

Blumenthal invited questions after his talk and I asked the one I blogged about earlier. It seems to me (but I may be wrong, can you clarify?) that some of the search programs are premised on the notion that it is neither a search nor a seizure to collect vast amounts of information indiscriminately, as long as no one actually peeks at it until sometime later when they have a warrant to retrieve something specific. Am I right, I asked, that this is the interpretation of the Fourth Amendment by which these programs are being run?

Blumenthal answered that he didn't know, because FISA court opinions have not been made public. I think it was an honest answer, but one that may have intentionally answered the easier question, which was whether particular searches of the databases (the peeks into data collected in the past) were being done responsibly. No way to know that either, but that was not my question.

There were a few news stories a week or so ago (here is one summary) about how other federal agencies were going exactly where you would expect them to go, once they know that NSA has these huge databases. They have crimes to solve and threats to ward off too. The data is already there; don't we want to look into it if it would help solve, or prevent, the next Oklahoma City bombing, an event that had nothing to do with any foreign power? So tempting. And once that precedent is established, where would we go next?

The collection of such huge databases, just because it is possible and may come in handy some day, is an invitation to mischief by future legislators. It will be easy to authorize some future category of search of some existing database being formed right now, if the category contains the crucial clue to some horror and the data exist already. The category, once defined, will be abused (we have some experience with that here at Harvard). The hard part was giving the government the authority to collect all that data in the first place. Have we done that?