NSA's Mass-Surveillance Program Suffers a Blow From 2nd Circuit

5/7/2015 7:47:00 AM, Adam Klasfeld

     MANHATTAN (CN) - The 2nd Circuit was unanimous Thursday in finding that the National Security Agency has no authority under the Patriot Act to scoop up the telephone metadata of millions of U.S. citizens.
     Thursday's decision represents "a resounding victory for the rule of law," the ACLU's Alexander Abdo said in a statement.
     "For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority," Abdo added. "The court rightly rejected the government's theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society."
     The 97-page opinion vacates a federal judge's ruling that section 215 of the anti-terrorism law justified what many have denounced as mass surveillance.
     Back in December 2013, U.S. District Judge William Pauley had found that the NSA's surveillance struck the necessary balance to counterattack a "bold jujitsu" of international terrorism.
     Pauley's decision split from the finding earlier that month by U.S. District Judge Richard Leon in Washington, D.C., on a separate case over the same surveillance. Leon had said that the NSA's program represented an "indiscriminate" and "almost Orwellian" invasion of privacy.
     Both decisions were immediately appealed, and the 2nd Circuit noted their disconnect at September 2014 oral arguments that brought unprecedented transparency to the court. To accommodate the massive public interest in the case, those proceedings were broadcast on C-SPAN.
     Sidestepping the constitutional fray, the 2nd Circuit limited its holding Thursday to the NSA's statutory justification of it: a subclause of the Patriot Act identified as section 215.
     The panel said Congress could not have predicted the executive branch's use of the Patriot Act for such sweeping collection until former NSA contractor Edward Snowden blew the lid on the program.
     "That revelation, of course, came to pass only because of an unprecedented leak of classified information," Judge Gerard Lynch wrote for a three-person panel.
     Several congressmen gave the court insight to the statutory history in friend-of-the court briefs.
     U.S. Rep. James Sensenbrenner, a Wisconsin Republican who helped write the Authorization to Use Military Force, told the court, for example, that the government wrongly cited it to defend the program.
     Former Democratic Vice President Walter Mondale and Sen. Gary Hart, D-Colo., also said that they never expected that their decades-old work designing the Foreign Intelligence Surveillance Act would be used for the NSA's current purposes.
     Thursday's opinion makes early mention of the period in which Mondale and Hart served on the Church Committee that peered into the abuse of government spying powers.
     "In the early 1970s, in a climate not altogether unlike today's, the intelligence-gathering and surveillance activities of the NSA, the FBI, and the CIA came under public scrutiny," Lynch wrote.
     Mondale and Hart's committee reined in such programs as NSA's Project Shamrock (another warrantless wiretapping program), the FBI's Cointelpro program (which hounded Martin Luther King Jr.) and the CIA's Operation Chaos (targeting groups like Students for a Democratic Society, the Black Panther Party and Ramparts Magazine).
     Alluding to this history, Lynch noted: "The Church Committee expressed concerns that the privacy rights of U.S. citizens had been violated by activities that had been conducted under the rubric of foreign intelligence collection."
     On remand, there is a "likelihood - indeed, a certainty - of success on the merits" for the American Civil Liberties Union, Lynch said.
     "This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation - a job in which, as the president has stated, 'actions are second-guessed, success is unreported, and failure can be catastrophic' - with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms," the lead opinion concludes. "Reconciling the clash of these values requires productive contribution from all three branches of government, each of which is uniquely suited to the task in its own way."
     In addition to joining the decision with Judge Vernon Broderick, Judge Robert Sack wrote a concurring opinion that quotes the New York federal judge who presided over the Pentagon Papers case.
     "These are troubled times," the late U.S. District Judge Murray Gurfein wrote in an earlier era.
     Finding the same to be true today, Sack urged Congress to take action.
     "Because our decision is based on our reading of a federal statute, not the Constitution, Congress can in effect overrule it," Sack wrote. "The enactment of a statute amending or supplanting the portion of section 215 that, until now, has been interpreted to authorize the NSA's bulk collection program would likely do the job, subject, of course, to a subsequent constitutional challenge in the courts.
     "Alternatively, Congress might simply terminate the program," he added. "Recent news dispatches indicate that it is considering doing just that."
     The Department of Justice did not immediately respond to a request for comment. Attachment
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