Fights over NSA surveillance could be as intriguing as any good spy story

12/20/2013 5:39 PM

12/20/2013 5:39 PM

It’s easy to get lost amid all the spying revelations, investigations and related lawsuits sprouting up.

Here’s a roadmap.

Start with the decision Monday, by a federal trial judge who concluded it’s likely that a National Security Agency surveillance program violates the Fourth Amendment’s protections against unreasonable searches and seizures. This case bears close watching, as it or something similar seems destined for the Supreme Court

The trial judge did not mince words in characterizing the government’s scooping up massive amounts of telephone data.

“I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the ‘abridgement of the freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,” U.S. District Judge Richard Leon wrote.

But while emphatic, Leon’s ruling conflicted with decisions by other federal judges. Earlier this year, for instance, a San Diego-based judge rejected similar Fourth Amendment arguments by Somali immigrants convicted of conspiring to support terrorists.

The conflicting decisions both deal with the NSA’s “bulk telephony metadata” collection program.

Metadata includes what phone numbers were used, when the calls took place and how long the calls lasted. It does not include the content of the calls. Intelligence analysts scrutinize metadata to find connections between terrorist organizations and previously unknown terrorist suspects.

The fact that two federal judges differed about the telephony metadata underscores the legal uncertainty that still exists. It also shows why the Supreme Court must eventually weigh in.

In a Nov. 18 decision denying a new trial in the San Diego case, U.S. District Judge Jeffrey T. Miller reasoned that “while technology continues to advance . . . the legal analysis remains fairly constant.” That legal analysis, Miller said, remains rooted in a 1979 Supreme Court decision that found individuals don’t have an expectation of privacy in the telephone numbers they call.

Leon, by contrast, stressed that the smart phone era has radically altered the legal landscape.

“Put simply, people have an entirely different relationship with phones than they did 34 years ago,” Leon wrote. “Metadata from each person’s phone reflects a wealth of detail about her familial, political, professional, religious and sexual associations.”

Miller was appointed by a Democratic president, Bill Clinton. Leon was appointed by a Republican, George W. Bush. Their different conclusions about the NSA spying program could reflect, in part, different litigation circumstances. Miller was being asked to reverse a jury’s guilty verdict following a criminal trial. Leon was ruling on a civil challenge from plaintiffs that included the father of a slain Navy cryptologic technician.

More substantively, the two decisions reflect a conflict that only the nation’s highest court can resolve. It won’t happen this term, which ends in June, but it will happen eventually.

“Only the Supreme Court can resolve the question,” Democratic Sen. Dianne Feinstein of California, chairwoman of the Senate Intelligence Committee, said Tuesday, adding that she would “welcome a Supreme Court review.”

In the meantime, still more judges will thicken the plot. In San Francisco, the Electronic Frontier Foundation, a nonprofit free speech and privacy organization, has sued on behalf of the First Unitarian Church of Los Angeles and others. In New York, the American Civil Liberties Union is pursuing a similar legal challenge to the NSA’s telephone surveillance program.

On Dec. 6, the Obama administration urged a federal judge to dismiss the Electronic Frontier Foundation case. Oral arguments on the ACLU’s challenge were held last month.

“We hope that Judge Leon’s thoughtful ruling will inform the larger conversation about the proper scope of government surveillance powers, especially the debate in Congress about the reforms necessary,” said Jameel Jaffer, the ACLU’s deputy legal director.

Congressional overseers will certainly be busy.

In recent months, the Senate Judiciary Committee has conducted three NSA oversight hearings and more are on the way. Feinstein, a longtime defender of NSA programs, separately convened about a dozen Intelligence Committee hearings into the NSA since the revelations began in June through leaks from former NSA contractor Edward Snowden.

Given his gradual disclosure of NSA secrets, it seems safe to safe that Snowden still has more to uncork.

Courts, too, may shine additional light. The ACLU, for one, has sued under the Freedom of Information Act for release of legal opinions used to justify secret court orders issued under Section 215 of the USA PATRIOT Act. The Section 215 orders direct third parties, like telecommunication companies, to deliver “any tangible thing,” such as business records that investigators consider relevant to foreign intelligence. Under pressure, some documents have already been released.

The big Capitol Hill question may be not whether a surveillance bill passes, but how far it might go.

Companion bills in both the House and the Senate would tighten restrictions on electronic surveillance under the stirring name USA Freedom Act. They have some popular appeal, with 115 House co-sponsors and 18 co-sponsors in the Senate.

“This dragnet program alone is an unwarranted intrusion into Americans’ lives, but coupled with other NSA programs that have recently been made public, it raises serious concerns about the state of privacy in our country,” said Rep. John Garamendi, D-Calif., adding his hope that Congress next year “takes a serious look at these programs.”

Separate legislation has been introduced to add a “special advocate” position to the secretive Foreign Intelligence Surveillance Court. The advocate would “protect individual rights” when the government seeks court approval for secret operations, according to the legislation. Potentially, this idea could be folded in to a larger reform bill.

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