Secrecy Surrounding NSA Spying Can’t Upend Standing, ACLU Says

     MANHATTAN (CN) – Though kept in the dark as to how the government uses the information gleaned from its secret phone-tracking program, opponents insist that they have standing to sue.
     The American Civil Liberties Union sued on June 11 after information about the program was revealed by former National Security Agency contractor Edward Snowden. It contends that the NSA’s blanket tracking of phone calls exceeds statutory authority and violates the First and Fourth amendments to the Constitution. While the case proceeds, the ACLU wants an injunction barring the mass call-tracking program and requiring the agency to purge any records already collected.
     In an earlier motion to dismiss, the government argued that the ACLU lacks standing because it lacks proof that the government’s use of call records will “identify persons with whom plaintiffs speak,” and that “others might refrain from communicating with plaintiffs because they fear disclosure of their association with plaintiffs.”
     The ACLU and its chapters on Tuesday called that argument “misguided.”
     “Plaintiffs’ challenge is not limited to the NSA’s use of plaintiffs’ call records after collecting them but is also directed at the government’s collection of those records in the first place,” it said in an opposition brief. “The collection of plaintiffs’ call records is itself an injury … [and] constitutes a gross invasion of their privacy.” (Emphasis in original.)
     The government defended its interpretation of Section 215 of the Patriot Act, claiming that it allows the government to compel the production of tangible things if there are “reasonable grounds to believe that [they] are relevant to an authorized investigation.”
     But the ACLU says the government’s use of 215 is a stretch and an abuse of power.
     “The mass call-tracking program goes far beyond its authority,” the ACLU wrote. “The notion that detailed information about every phone call made by a resident of the United States over seven years could be ‘relevant to an authorized investigation’ flouts precedent and common sense, as well as the larger statutory scheme.”
     Challenging the contention that Congress ratified the spying program when it reauthorized Section 215 in 2010 and 2011, the ACLU notes that some members of Congress have said they were never informed of the Foreign Intelligence Surveillance Court’s secret interpretation of Section 215.
     “The government implies that Congress had constructive knowledge of the FISC’s interpretation because the government provided ‘all members of Congress … access’ to information about the program,” the ACLU wrote. “That contention is doctrinally inadequate.”
     Meanwhile the government also filed its opposition to the ACLU’s demands for an injunction on Tuesday. Insisting that its surveillance of phone metadata aids national security, the U.S. government said that the ACLU’s demand for an injunction relies on pure “conjecture.”
     “Targeted electronic searches of these data, based on telephone numbers or other identifiers associated with foreign terrorist organizations, can reveal communications between known or suspected terrorists and previously unknown terrorist operates, located in this country, who may be planning attacks on U.S. soil,” the government wrote.
     Robert Holley, assistant director of the FBI’s Counterterrorism Division, said in a declaration also filed Tuesday that it is imperative” that the government be able to “rapidly identify any terrorist threat inside the United States.”
     The NSA’s telephony metadata program achieves that end, he added.
     Among the information excluded from collected data is cell site location information; the content of any communication; and the name, address or financial information of a subscriber or customer, Holley said.
     The data consists only of a “trunk identifier,” telephone calling card numbers, and time and duration of each call, he added.
     “By analyzing telephony metadata based on telephone numbers (or other identifiers) associated with terrorist operatives or activity, NSA analysts can work to determine whether known or suspected terrorists have been in contact with individuals in the United States,” the declaration states. “The NSA telephony metadata program was specifically developed to assist the government in detecting communications between known or suspected terrorists who are operating outside of the United States and who are in contact with others inside the United States, as well as communications between operatives within the United States.”
     Holley defended the program as being supported by the FISC, whose 14 judges have granted the government’s applications on 34 separate occasions.
     Though FISC recently released opinions in which its judges called the surveillance a “flagrant violation” of policy and likely unconstitutional, the government used its opposition brief to blame human error and technological issues for these failures.
     “The government reported these problems to the FISC (and Congress) and remedied them, and the FISC (after temporarily suspending the government’s authority to query the database without the court’s approval) reauthorized the program in its current form,” the brief states. “Importantly, even the most serious of these incidents did not involve the compilation of detailed profiles of Americans’ lives, as plaintiffs insinuate has been occurring.”
     Telephony metadata collection also helped the government disrupt a 2009 plot by al-Qaida to bomb a New York City subway, the government noted.
     He recounted a “number of recent episodes” demonstrating how the program helped prevent and protect against a terrorist attack. In January 2009, NSA discovered a connection with an individual in Kansas City that information about a plot in the early stages of attack against the New York Stock Exchange. He says the program led to three defendants being convicted of terrorism related offenses in support of al-Qaida.
     Holley also attributed telephony metadata collection to helping the government build its case against Chicago businessman David Coleman Headley, related to his participation in a plot to attack a Danish newspaper that published cartoons depicting the Prophet Mohammed.
     In September 2009, the NSA discovered an al-Qaida terrorist in contact with an unknown person in the U.S. about efforts to get explosive material. A lead revealed a previously unknown number for co-conspirator Adis Medunjanin and other extremists who conspired to bomb the New York City subway system, according to the declaration. Medunjanin was sentenced to life in prison in November 2012.
     Teresa Shea, signals intelligence director for the NSA, said in a declaration, also filed Tuesday, that from May 2006 through May 2009, the NSA provided to the FBI and other agencies 277 reports containing 2,900 telephone identifiers.
     If the spying program is enjoined, the NSA would need six months to implement a replacement solution, she added.
     “If this court were to grant a preliminary injunction and the defendants were to later prevail on the merits of this litigation, it could prove extremely difficult to develop a solution to reinsert any quarantined records and would likely take considerable resources and several months to build, test, and implement a re-insertion capability suited to this task,” the declaration states.
     The ACLU meanwhile says in its latest motion that the program is “broad beyond all limits,” and violates its 1st Amendment rights.
     “No other law-enforcement demand has involved the disclosure of Americans’ telephone communications on such wholesale terms,” the ACLU wrote. “As a direct result, the program’s intrusion on associational privacy and its chilling effect on protected expression are on a scale without ready comparison. In these qualities, the program puts a wholly new calculus before the court – one which fails the exacting-scrutiny standard, and cannot be saved by even the purest motives.”

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