At a recent panel on the EPIC challenge, James Bamford, the leading chronicler of the NSA, reviewed the sorry history of the telephone metadata surveillance program that the FISA court failed even to discuss or acknowledge. The FISA Court was created in 1978 after Frank Church, head of the Church Committee, worried that technological surveillance capabilities in the hands of the government could “make tyranny total in America.” The secret court was a compromise between Democrats, who wanted the NSA to obtain warrants for surveillance in regular federal courts, and Republicans, who wanted few restrictions on surveillance. The compromise worked adequately for 30 years. But in 2001, the Bush administration, having decided that the FISA court wasn’t trustworthy enough, created a mass surveillance program of Internet and telephone called Stellar Wind that bypassed the FISA judges and only notified the Chief Judge of the Court.
One of the documents released by Edward Snowden was the NSA Inspector General’s report on Stellar Wind. Before the Snowden leak, many believed that James Comey, then deputy attorney general and now the director of the FBI, was a hero because, in 2004, he concluded that one component of Stellar Wind was illegal. This prompted White House Counsel Alberto Gonzalez to rush to the hospital bed of an ailing Attorney General, John Ashcroft, who also refused to authorize the program. But as Bamford noted, we know from Snowden’s disclosures that when Comey and Ashcroft refused to sign off, NSA director Michael Hayden, under White House pressure, decided to continue the Internet and telephone eavesdropping program anyway. Eventually, in 2011, the Obama NSA shut down the Internet metadata surveillance program, concluding that it couldn’t be authorized under existing law. But it continued to collect telephone metadata, legalistically justifying it under the “business records” provision of the U.S.A. Patriot Act.
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