Lawfare Research Paper Series

Steven G. Bradbury on "Understanding the NSA Programs" (Lawfare Research Paper Series)

By Benjamin Wittes
Friday, August 30, 2013, 5:44 PM

I'm pleased to announce that the third installment of the Lawfare Research Paper Series is now available. By Steven. G. Bradbury, former head of the Justice Department's Office of Legal Counsel and now a partner at Dechert LLP, the article is entitled, "Understanding the NSA Programs: Bulk Acquisition of Telephone Metadata Under Section 215 and Foreign-Targeted Collection Under Section 702." It offers a detailed explanation of---and defense of---the legal basis for the NSA's programs. Its abstract reads:

In response to the disclosures by former government contractor Edward J. Snowden, the Director of National Intelligence (“DNI”) has confirmed the existence of two foreign intelligence collection programs of the National Security Agency (“NSA”) and declassified key information.  Executive branch officials have testified about the programs in open hearings in Congress, and the administration has released white papers providing further details to inform the public.

The first NSA program involves the bulk acquisition of telephone metadata through court orders issued under the business records provision of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1861—a provision added to FISA in 2001 by section 215 of the USA PATRIOT Act, Pub. L. No. 107-56, 115 Stat. 272 (2001), and therefore commonly referred to as “section 215.”  The second, conducted under section 702 of FISA, 50 U.S.C. § 1881a, involves a broad program of electronic surveillance carried out on facilities within the United States and targeted at foreign persons reasonably believed to be located outside the United States.  This second program includes, among other things, the so-called “PRISM” collection of Internet communications.

Relying on the information declassified and acknowledged by the government, this paper analyzes the legal basis for each of the programs and explains in detail why both are authorized by statute and fully consistent with the Constitution.