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Senate Intel Members on Verizon Order: Nothing to See Here

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Thursday, June 6, 2013 at 12:57 PM

That’s the gist of this Politico report, which adds new details about congressional oversight and the FISC order directed at metadata for Verizon customers’ communications.  Some members have expressed concerns, apparently;  the Chair and Ranking member of the Senate Intelligence Committee, however, have not.  Quite the contrary, as the article explains:

Sens. Dianne Feinstein (D-Calif.) and Saxby Chambliss (R-Ga.) also defended the National Security Agency’s request to the company for all the metadata about phone calls made within and from the United States.

“As far as I know, this is the exact three-month renewal of what has been in place for the past seven years,” Feinstein said. “This renewal is carried out by the [Foreign Intelligence Surveillance Court] under the business records section of the Patriot Act. Therefore it is lawful. It has been briefed to Congress.”

Chambliss said the report in the Guardian Wednesday was “nothing new.”

“This has been going on for seven years,” he said. “…every member of the United States Senate has been advised of this. To my knowledge there has not been any citizen who has registered a complaint. It has proved meritorious because we have collected significant information on bad guys, but only on bad guys, over the years.”

It is certainly important that congressional overseers have been briefed about this apparently long-lasting  intelligence activity.  But that’s not the whole story: a residual question is the government’s legal theory regarding the relevance of all Verizon telephony metadata, with respect to communications within the United States only and calls between the United States and abroad, to a FISA-authorized investigation.  (Ben posted earlier on this point; Orin Kerr also has an especially helpful discussion over at Volokh.)  If the metadata collection here is both seven years old and ongoing—though refreshed quarterly before the FISC, and briefed to intelligence committee members—then the answer seems especially consequential.  There’s also the matter of publicity: if the production of these records from Verizon is so unremarkable, and so long-lasting, then why not better explain the government’s legal position to the public, and not just to the FISC and to appropriate members of congress?

[This post has been updated.]

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