2nd Cir. Hesitant to Close NSA’s Spying Window

MANHATTAN (CN) -A Second Circuit judge appeared hesitant to "throw some thunderbolts" zapping a 180-day transition period between the passage of the USA Freedom Act and the NSA's deadline to stop vacuuming up telephone data.

The government must stop scooping up the telephone data of millions of U.S. citizens and others who have never been suspected of a crime on Nov. 29, when the new law comes into effect.

The American Civil Liberties Union, however, claims that every day the current program runs in the interim defies the Second Circuit's ruling finding it illegal in May.

On Wednesday, all three Second Circuit judges presiding over the case seemed skeptical that there was any reason to intervene before the program elapses on its own in late fall.

Circuit Judge Robert Sack noted that the NSA's critics already achieved "an historic accomplishment" with the passage of the USA Freedom Act.

"Why don't you declare victory and withdraw?" he asked.

The ACLU's Alexander Abdo emphasized that the harms their clients face from continuing surveillance is "not hypothetical."

He mentioned that the organization represents several people fighting their inclusion on the "no-fly" list, and the group needs to protect the communications of potential "government whistle-blowers" seeking their representation.

The ACLU also wants to the government to destroy the data that the NSA previously collected.

"Since they were unlawfully collecting, we believe they should purge them," Abdo said.

Assistant U.S. Attorney Henry Whitaker emphasized throughout his arguments that the government sought to transition from the program in a "responsible and orderly fashion" and to "set up the technical architecture" of the new regime.

In what he called "one of the ironies of this case," Whitaker said the government would have to enter search terms related to the ACLU in order to purge data that might otherwise gather dust in "backup tapes in the bowels of the NSA."

Circuit Judge Gerard Lynch hinted that the ACLU's efforts could backfire, if the injunction the group wants lands before the Supreme Court.

"There are all sorts of review for the victory you so far won," he told the ACLU's lawyer.

Courts already appear divided on the government's authority to collect data en masse.

The Second Circuit previously found that section 215 of the Patriot Act did not justify the NSA's program, as the government had long insisted.

Rejecting this reasoning a month later, a judge at the Foreign Intelligence Surveillance Court wrote that he "respectfully disagrees" with the appellate court's opinion, which he added was "not binding" on him.

Lynch also expressed doubt that Congress did not mean to create a six-month window by postponing the law's enactment.

"They thought that they were abolishing bulk collection," he said, referring to Congress.

In doing so, Lynch quipped that legislators envisioned a "more liberal, more freedom-enhancing regime, then they delayed the institution of that happier day."

Abdo countered that the law only specified that it would not "alter or eliminate the authority of the government" to keep collecting data.

Lawmakers chose this vague language as a compromise to acknowledge the "political reality" that many disputed what this authority was, he added.

Apparently agreeing, Lynch said: "They knew it was only six months, and both sides thought they could ride it out."

The ACLU's challenge, he added, asks the court to "throw some thunderbolts" on the status quo.

Regardless of what happens in New York, the government's transition calendar is likely to be shaken up by a federal judge in Washington in the case of a separate challenge by conservative gadfly Larry Klayman.

Hours before the Second Circuit hearing, U.S. District Judge Richard Leon said that he would not "let the government run the clock out" to intervene on behalf of "millions of Americans whose constitutional rights have been and are being violated."

His blockbuster remarks came less than a week after the D.C. Circuit overturned his ruling in Klayman's favor on a technicality. The appellate court ruled that Klayman lacked standing to sue because he is a Verizon Wireless subscriber and the government only acknowledged snooping on Verizon Business customers.

Leon recommended that Klayman re-file a complaint with a plaintiff who can prove being spied on, and promised to resolve the case speedily after that.

The Second Circuit, meanwhile, ended its hearing after an hour and a half without indicating how it would rule.

While the judges seemed reluctant to take further action, they peppered attorneys for the ACLU and the government with questions far beyond their allotted time.

Lynch, in particular, praised what he called the ACLU's "powerful" arguments, even as he indicated the group has a tough row to hoe.

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