In light of the President's recent announcement that the NSA's bulk collection of telephone metadata will end, there is a renewed interest in Congress to revise U.S. surveillance laws. At the same time, the Privacy and Civil Liberties Oversight board is conducting its review of the bulk collection of international communications under the Section 702 / PRISM program. While these oversight and reform efforts are underway, it is important to consider the policy-making process that authorized these programs in the first place.
Two Freedom of Information Act cases, one brought by EPIC following the disclosures last summer and another brought by the ACLU several years before, attempt to get to the heart of this question. Both cases lead to the same shocking conclusion - that the Department of Justice Office of Legal Counsel, which played a central role in the initial decision to implement the warrantless wiretapping program, was not involved in the decision to transition those surveillance programs to new FISA authorities.
This revelation that OLC issued no final legal interpretation of either FISA program is surprising because the OLC played a key role in the initial decision by the President to conduct warrantless surveillance in 2001. The Office of Legal Counsel "provides authoritative legal advice to the President and all the Executive Branch agencies" including "offices within the Department." In that capacity, OLC attorneys advised the President and other agencies on legal issues related to the post-2001 surveillance programs. OLC subsequently conducted an in-depth analysis of the constitutional and legal issues raised by the warrantless wiretapping program (the precursor to both PRISM and the Metadata program). But when it came time to transition those programs to a new legal authority, the OLC did not issue any final legal memoranda or opinions regarding the new interpretation of the relevant FISA provisions.
In EPIC v. DOJ, we filed a FOIA suit to obtain from the Office of Legal Counsel:
All final legal analysis, memoranda, and opinions regarding the PRISM program, including, but not limited to, records addressing the Foreign Intelligence Surveillance Act, 50 U.S.C. §§ 1801 et seq., and the Fourth Amendment to the U.S. Constitution
We recently closed that case after the agency provided a letter concluding that there were "no records responsive" to our request, confirming that the OLC never conducted a legal analysis of the PRISM program after it was implemented pursuant to the FISA Amendments Act of 2008.
The ACLU filed a similar, but broader, request for "any and all records concerning the government's interpretation or use of Section 215" to the Department of Justice OLC, NSD, OPA, OIP, and the FBI. In response to ACLU's suit, the OLC identified two responsive documents, but neither of them included a substantive legal analysis of Section 215. The OLC officials had searched specifically for any classified legal opinions about Section 215 and concluded that there were none. This confirms that, like the PRISM program, the legality of the Metadata program was never analyzed by the OLC.
So even though OLC confirmed in EPIC's original warrantless wiretapping FOIA case (at ¶59) that it took part in the "interagency discussions" related to the transition of the warrantless wiretapping program to a series of FISC-authorized programs, it issued no final legal guidance about Section 215. One likely explanation for this lack of final OLC guidance is that the National Security Division attorneys responsible for FISA applications were confident in their interpretation of the statute. But that interpretation (of the 215 Order specifically) has been widely criticized by members of congress (including the original author of the Patriot Act), the PCLOB, and groups like EPIC. The President has decided to end the program and is no longer advocating for that broad interpretation of the law. If the attorneys at NSD felt that their interpretation of 215 authorizing bulk collection was obvious, the recent controversy has proven them wrong.
In regards to the PRISM program, the lack of OLC consultation is understandable but still troubling. The previous OLC memo addressing the warrantless wiretapping program, authored by Jack Goldsmith in May of 2004, provides at least some Fourth Amendment analysis (though it is limited to 6 pages and remains heavily redacted). But this analysis does not address the new issue raised by the FISA Amendments Act itself: what limitations are necessary to ensure that "acquisition" authorized by Section 702 is "conducted in a manner consistent with the Fourth Amendment" (see 50 U.S.C. § 1881a(b)(5)).
This is a significant question of Fourth Amendment law, and one that the Supreme Court recently declined to consider in Clapper v. Amnesty International. The answer hinges on the exact scope of the protections implemented by the NSA in its PRISM systems. But it also depends on the scope of Fourth Amendment protections as applied to international and one-end-domestic communications. Current cases do not provide a clear answer to this question, and that makes it even more important to know who decides what rule will apply. The FISC certainly plays a role, but without adversarial briefing the Government's own internal policy-making process becomes even more significant.
The fact that OLC, the authoritative legal advisor to the President and executive agencies, did not weigh in on this important issue is vexing. And it raises serious questions of institutional legitimacy, including whether Justice Department attorneys properly considered other constitutional issues, including the avoidance doctrine.