Defenders of the National Security Agency’s controversial call records program, which vacuums up Americans’ phone logs in bulk, like to remind us that the Patriot Act power to collect “business records” has been ratified by large majorities in Congress. Yet a compromise sharply limiting that authority, strongly endorsed by then-Senator Barack Obama, was unanimously approved by the Senate way back in 2005—until a sneaky last-minute change turned the limits on their head.

Passed in haste mere weeks after the terrorist attacks of September 11, several provisions of the Patriot Act—including Section 215, which allows the government to obtain business records with an order from a secret court—included built-in expiration dates. When the time came to reauthorize those provisions in the summer of 2005, a bipartisan group of legislators—including Dick Durbin, Larry Craig, John Sununu, and Lisa Murkowski—hammered out a compromise aimed at ensuring that Section 215 could only be used for records that had some concrete connection to a suspected spy or terrorist.

Under the proposed language, the government could obtain an order for business records from the classified Foreign Intelligence Surveillance Court provided the records were “relevant to an authorized investigation” and fell into one of three categories: the records would have to pertain either to a suspected “agent of a foreign power,” someone in direct contact with the suspect, or the “activities” of a suspect. This language would have allowed the government to look at associates “one hop” away from the target of an investigation—to distinguish innocent acquaintances from potential co-conspirators—as opposed to the two or three hops we now know the NSA routinely pursues. The “activities” category, meanwhile, would have allowed the FBI to follow-up leads about plots—such as a tip that Al Qaeda agents in a particular area were trying to buy explosive chemicals—without necessarily knowing who the individual plotters were.

This change would have been less restrictive than an amendment sponsored by Rep. Justin Amash (R-Mich.), which recently failed to pass the House of Representatives by the narrowest of margins, and which would have allowed Section 215 to be used only for the records of the “subject” of the investigation. Yet it would also clearly rule out the indiscriminate bulk collection of records—which the NSA would begin doing under Section 215 in 2006. The reform sailed through the Republican-controlled Senate on a unanimous consent vote in July 2005.

In November, however, supporters of the new safeguards received a rude surprise: The conference committee tasked with reconciling the House and Senate versions of the Patriot reauthorization had made a subtle change that actually expanded the scope of Section 215—a change staffers familiar with the reauthorization believe was made at the behest of the White House. The compromise language had specified that the government could get records that were both relevant and fell into one of those three categories linking them to a terror suspect. The new language not only did away with the limitation—any records that met the low standard of “relevance” were fair game—it said that all records in those three categories were “presumptively” relevant. This change would also have sent a subtle signal to the court under normal principles of legal interpretation: If these three categories were automatically relevant, then by implication, even records that didn’t fit into any of those categories had to be potentially “relevant” also—just not automatically.

When the legislators who had hammered out the compromise objected, Sen. Arlen Specter, then the chair of the Judiciary Committee, sought to reassure them that Section 215 would only very rarely be used so broadly:

The relevance standard will apply only in extraordinary circumstances because the Conference Report channels all applications for Section 215 orders into the three categories delineated in the Senate bill. By providing a presumption of relevance when the government can demonstrate a connection to a suspected terrorist or spy, the bill ensures that requests falling outside the three categories will be the exception and not the rule. Indeed, the presumption ensures that law enforcement will face an uphill battle in any effort to obtain a 215 order that does not fall into one of the three categories and thereby provides an incentive for the FBI to use the tool only when it can show a connection to a suspected terrorist or spy.

Many legislators were unconvinced—including the freshman senator from Illinois, a promising young politician named Barack Obama. In a bipartisan follow-up letter, Obama and eight of his colleagues complained that the late changes meant that “the Senate is being asked to reauthorize the Patriot Act without adequate opportunity for debate.” They also rejected Specter’s assurances that the broad relevance standard, unrestricted to specific categories, would be used only in “limited, extraordinary circumstances.” Their original compromise, they wrote, imposed upon the government “a very low burden to meet, but one that will protect innocent Americans from unnecessary surveillance and ensure that government scrutiny is based on individualized suspicion, a fundamental principle of our legal system."

They were obviously right to be concerned. Within a year, as we now know, the NSA began using Section 215 to routinely collect the phone records of all Americans. Far from being rare or extraordinary, a recently declassified summary of the program acknowledges that this bulk collection was actually the “largest and most significant” use of the Section 215 authority.

By the time the Patriot Act next came up for reauthorization in 2009, the NSA program was in full swing—but even those legislators who knew about it couldn’t debate it publicly. Under pressure from the new administration, then, the same reform that the Senate had unanimously approved four years earlier died without any real discussion. “The real reason for resisting this obvious common-sense modification of Section 215 is cloaked in secrecy,” Sen. Dick Durbin complained at the time. “Someday the cloak will be lifted, and future generations will ask whether our actions today meet the test of a democratic society—transparency, accountability, and fidelity to the rule of law and our Constitution.”

Now that the cloak has been lifted, that’s precisely the question a lot of Americans are asking.

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