By Brendan Sasso - 06/06/13 04:58 PM EDT
President Obama co-sponsored legislation when he was a member of the Senate that would have banned the mass collection of phone records that his administration is now engaged in.
The SAFE Act, introduced by former Sen. Larry Craig (R-Idaho), would have amended the Patriot Act to require that the government have "specific and articulable facts" to show that a person is an "agent of a foreign power" before seizing their phone records.
The bill was referred to the Judiciary Committee in 2005, but never received a vote. It had 15 co-sponsors in all, including then-Sens. John Kerry (D-Mass.) and Chuck Hagel (R-Neb.), who are now members of Obama’s Cabinet.
"The bill very much limit[ed] the scope of these secret orders to people who are believed to be bad guys instead of innocent citizens," said Jeffrey Rosen, a law professor at The George Washington University. "It was great that Obama sponsored it at the time, and too bad he has abandoned that principle."
Gregory Nojeim, an attorney for the Center for Democracy and Technology, agreed that the SAFE Act would have made the mass NSA collection of phone records illegal.
The Guardian on Wednesday revealed a secret court order that requires Verizon to give the National Security Agency information on all of its customers' phone records — not just those under any suspicion of wrongdoing. The order covers the numbers of both callers, the time and duration of the calls and other identifying information. The order does not cover the contents of conversations or text messages.
An administration official defended the mass data collection program on Thursday as a “critical tool in protecting the nation from terrorist threats to the United States.”
“It allows counterterrorism personnel to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States,” the official said.
The Verizon court order was based on Section 215 of the Patriot Act, which allows the government to collect any business records "relevant" to a terrorism investigation.
Rosen argued that even under that loose standard, the data collection of Verizon customers might be illegal.
"That does not seem to justify blanket mass surveillance," he said, adding that the administration should release any legal memos justifying the program.
Nojeim said he believes the data collection applies to more than just Verizon customers.
"It doesn't make sense to think that only Verizon's customers are talking to terrorists," he said. "Certainly it's broader than that, and the government should tell us how broad it is."
Sens. Dianne Feinstein (D-Calif.) and Saxby Chambliss (R-Ga.), the top members of the Senate Intelligence Committee, said on Thursday that they were aware of the NSA surveillance program and that it has been going on for years.