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IV. (U) Legal Analysis

(U) The Board’s statute authorizes us to review “actions by the executive branch relating
to efforts to protect the nation from terrorism to determine whether such actions . . . are
consistent with governing laws, regulations, and policies regarding privacy and civil liberties.” 172
We understand our statutory mandate to reflect Congress’s desire that it receive a full, fair, and
impartial assessment of a program’s legality when the Board issues reports. 173 Congress no
doubt recognized that some programs, such as the now-suspended CDR program under the USA
Freedom Act, might never give rise to litigation. 174 Moreover, many of the facts underlying a
program’s operation might remain classified, thereby raising questions in Congress as well as the
public whether the government has complied with its legal obligations in implementing the
program. Finally, Congress itself might want additional legal advice as it fulfills its
constitutional duty to enact the nation’s laws. 175

(U) For these reasons, we consider the USA Freedom Act CDR program in light of the
Constitution’s Fourth Amendment and the text of the statutory framework.

172 (U) 42 U.S.C. § 2000ee(d)(2)(C)(ii).

173 (U) The Board does not issue binding legal judgments like a court, nor does its legal advice bind actors within the
executive branch. See, e.g., 28 U.S.C. §§ 511, 512 (conferring such authority on the Attorney General);
Management of Federal Resources, Executive Order 12,146. The Board’s legal advice is advisory and relevant to
the extent it has “the power to persuade.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).
174 (U) With respect to the CDR program, limitations imposed by Article III of the Constitution would likely
preclude a challenge to the program’s constitutionality, absent the government’s initiation of a criminal prosecution
relying on evidence from the program. See Clapper v. Amnesty International, 568 U.S. 398, 410 (2013) (allegations
relied on a “highly speculative fear” that plaintiffs’ communications would be collected, rather than demonstrating
that alleged injuries were “certainly impending”); cf. American Civil Liberties Union v. Clapper, 785 F.3d 787, 801
(2d Cir. 2015) (plaintiffs challenging bulk CDR program “need not speculate that the government has collected, or
may in the future collect, their call records”). The Second Circuit’s holding in ACLU v. Clapper rested on the fact
that FISA court orders underpinning the bulk CDR program required “the production of all call detail records or
telephony metadata,” ACLU v. Clapper, 785 F.3d. at 797 (internal quotation marks omitted), an approach to
collection prohibited under the USA Freedom Act.
175 (U) Our colleagues question the “utility of a constitutional analysis” given the Board’s “limited time and
resources.” Statement of Ed Felten & Travis LeBlanc at 70. They suggest that is so because the USA Freedom Act
CDR program “has been suspended,” “its existence and primary contours were publicly known and debated, and it
was subject to oversight by the Foreign Intelligence Surveillance Court.” Statement of Ed Felten & Travis LeBlanc
at 70. Respectfully, we disagree. Although the CDR program may currently be suspended, Congress is considering
the reauthorization of a statutory provision under which the program could be restarted. In addition, the facts of the
program are not “publicly known”; although many such facts have been released to the public for the first time as a
result of the Board’s report, some remain classified. Finally, FISA court opinions often remain classified,
precluding public knowledge of the conclusions—constitutional and otherwise—the court reaches. Whether the
government has, in the past, acted consistent with the Constitution in implementing a classified program is of
significant relevance to public debates over the appropriate statutory regimes to govern such programs.

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