A lot of outrage has been directed at President Obama this week, following the disclosures that the National Security Agency and FBI have been routinely vacuuming phone records and tapping into tech companies' servers to pull troves of personal information.
In a much-discussed op-ed, the New York Times said the president had "lost all credibility" on the issue.
"Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it," the paper wrote.
Yet Obama can't shoulder all the responsibility for facilitating the controversial gathering of intel: Congress and the courts have also played major roles in authorizing the practice as well.
Congress has multiple times passed bills that drastically expanded the government's domestic spying powers, starting in 2001 with the USA PATRIOT Act. Most recently, Congress last December approved a five-year extension of the the FISA Amendments Act, updating the 1978 domestic surveillance law that allows the government to wiretap phone communications and pull emails without first obtaining warrants.
The FBI used FISA to justify its request for Verizon's phone records. And Roger Vinson, a federal judge best known for ruling that the individual mandate in ObamaCare was unconstitutional (he would later be rebuffed by the Supreme Court), signed off on that request.
As for PRISM, that too falls under Section 702 of FISA, according to Director of National Intelligence James Clapper. In a statement Thursday night, he defended the NSA's snooping by specifically noting that every branch of government has had a hand in authorizing such communications collections under FISA.
"Activities authorized by Section 702 [of FISA] are subject to oversight by the Foreign Intelligence Surveillance Court, the executive branch, and Congress," he wrote.
The top two members of the House Permanent Select Committee on Intelligence, Reps. Mike Rogers (R-Mich.) and Dutch Ruppersberger (D-Md.), similarly defended the government's actions, citing — what else? — FISA. Like Clapper, they noted that the actions are regularly reviewed by both the legislative and judicial branches.
And the top two senators on the Senate Select Intelligence Committee, Dianne Feinstein (D-Calif.) and Saxby Chambliss (R-Ga.), defended the spying on similar grounds, with Chambliss saying that "every member of the United States Senate has been advised of this."
Indeed, it seems every lawmaker has known about the spying for some time. A Justice Department letter, sent to Sen. Ron Wyden (D-Ore.) and obtained by Mother Jones' David Corn, elucidates that point.
The government has made public that some orders issue by the FISA Court under section 215 [of the Patriot Act] have been used to support important and highly sensitive intelligence collection operations, on which members of congress have been fully and repeatedly briefed. During the last Congress (in December 2009), and in the current Congress (February 2011), the Department of Justice and the Intelligence Community provided a document to the House and Senate intelligence committees to be made available to all members of the House and Senate describing the classified uses of section 215 in detail. The Intelligence and Judiciary Committees have been briefed on these operations multiple times and have had access to copies of the classified FIDA Court orders and opinions relevant to the use of section 215 in those matters. [Mother Jones]
It's not as if the Verizon probe was a onetime deal, either. Rather, the court order authorizing it appears to be a routine renewal that has been approved again and again.
"As far as I know, this is the exact three-month renewal of what has been the case for the past seven years," Feinstein said. "This renewal is carried out by the FISA Court under the business records section of the Patriot Act. Therefore, it is lawful."
That's not to say that every member of Congress agrees with her assessment of the program's legality. Wyden and Sen. Mark Udall (D-Colo.), both members of the Senate Select Intelligence Committee, have been sounding the alarm about the NSA's actions and demanding answers for years.
"We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the PATRIOT Act," the two wrote in a letter to Attorney General Eric Holder last year.
Sen. Rand Paul (R-Ky.) has said he's "appalled" by the NSA's actions. And Sen. Bernie Sanders (I-Vt.) shamed his fellow members of Congress this week, saying his past warnings that the executive branch had far too much spying power and far too little oversight "turned out to be exactly true."
Still, they're part of an incredibly small minority. The Senate last year approved the FISA renewal by a 73 to 23 vote, thus allowing the courts to keep approving orders for more data mining.
"A pox on all the three houses of government," the ACLU's Anthony Romero told the New York Times. "On Congress, for legislating such powers, on the FISA court for being such a paper tiger and rubber stamp, and on the Obama administration for not being true to its values."
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