The Foreign Intelligence Surveillance Court ruled late Monday that the NSA may temporarily resume its once-secret program that systematically collects records of Americans’ domestic phone calls in bulk.
WASHINGTON — The Foreign Intelligence Surveillance Court ruled late Monday that the National Security Agency (NSA) may temporarily resume its once-secret program that systematically collects records of Americans’ domestic phone calls in bulk.
But the American Civil Liberties Union (ACLU) said Tuesday that it would ask the 2nd U.S. Circuit Court of Appeals, which had ruled that the surveillance program was illegal, to issue an injunction to halt the program, setting up a potential conflict between the two courts.
The program lapsed June 1, when a law on which it was based, Section 215 of the USA Patriot Act, expired. Congress revived that provision June 2 with a bill called the USA Freedom Act, which said that the provision could not be used for bulk collection after six months.
The six-month period was intended to give intelligence agencies time to move to a new system in which the phone records — which include information like phone numbers and the duration of calls but not the contents of conversations — would stay in the hands of phone companies. Under those rules, the agency would still be able to gain access to the records to analyze links between callers and suspected terrorists.
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But, complicating matters, in May, the 2nd Circuit Court of Appeals, in New York, ruled in a lawsuit brought by the ACLU that Section 215 of the Patriot Act could not legitimately be interpreted as permitting bulk collection at all.
Congress did not include language in the Freedom Act contradicting the 2nd Circuit ruling or authorizing bulk collection even for the six-month transition. As a result, it was unclear whether the program had a lawful basis to resume in the interim.
After President Obama signed the Freedom Act on June 2, his administration applied to restart the program for six months. But a conservative and libertarian advocacy group, FreedomWorks, filed a motion in the surveillance court saying it had no legal authority to permit the program to resume, even for the interim period.
In a 26-page opinion made public Tuesday, Judge Michael Mosman of the surveillance court rejected the challenge by FreedomWorks. And Mosman said that the 2nd Circuit was wrong, too.
“Second Circuit rulings are not binding” on the surveillance court, he wrote, “and this court respectfully disagrees with that court’s analysis, especially in view of the intervening enactment of the USA Freedom Act.”
When the 2nd Circuit issued its ruling that the program was illegal, it did not issue any injunction ordering the program halted, saying that it would be prudent to see what Congress did as Section 215 neared its June 1 expiration. Jameel Jaffer, an ACLU lawyer, said Tuesday that the group would now ask for one.
“Neither the statute nor the Constitution permits the government to subject millions of innocent people to this kind of intrusive surveillance,” Jaffer said. “We intend to ask the court to prohibit the surveillance and to order the NSA to purge the records it’s already collected.”
The bulk phone-records program traces back to October 2001, when the Bush administration secretly authorized the NSA to collect records of Americans’ domestic phone calls in bulk as part of a broader set of post-Sept. 11 counterterrorism efforts.
The program began on the basis of presidential power alone. In 2006, the Bush administration persuaded the surveillance court to begin blessing it under of Section 215 of the Patriot Act, which says the government may collect records that are “relevant” to a national-security investigation.
The program was declassified in June 2013 after its existence was disclosed by the former intelligence contractor Edward Snowden.
It remains unclear whether the 2nd Circuit still considers the surveillance program to be illegal during this six-month transition period. The basis for its ruling in May was that Congress had never intended for Section 215 to authorize bulk collection.
In his ruling, Mosman said that because Congress knew how the surveillance court was interpreting Section 215 when it passed the Freedom Act, lawmakers implicitly authorized bulk collection to resume for the transition period.
“Congress could have prohibited bulk data collection” effective immediately, he wrote. “Instead, after lengthy public debate, and with crystal-clear knowledge of the fact of ongoing bulk collection of call detail records,” it chose to allow a 180-day transitional period during which such collection could continue, he wrote.
The surveillance court is subject to review by its own appeals panel, the Foreign Intelligence Surveillance Court of Review. Both the 2nd Circuit and the surveillance review court are, in turn, subject to the Supreme Court, which resolves conflicts between appeals courts.
Wyn Hornbuckle, a Justice Department spokesman, said in a written statement that the Obama administration agreed with Mosman.