SurveillanceAdministration asks court for six more months of NSA bulk metadata collection
Just four hours after President Barack Obama vowed to sign the USA Freedom Actwhich limits the NSA’s domestic bulk data collection program, his administration asked the Foreign Intelligence Surveillance (FISA) court to ignore a ruling by the second circuit court of appeals declaring the bulk surveillance program unauthorized, and instead grant the NSA power to continue bulk collection for six months. In its request, the administration pointed to a six months transition period provided in the USA Freedom Act as a reason to permit an “orderly transition” of the NSA’s domestic bulk collection program.
Just four hours after President Barack Obama vowed to sign the USA Freedom Act which limits the NSA’s domestic bulk data collection program, his administration asked the Foreign Intelligence Surveillance (FISA) court to ignore a ruling by the second circuit court of appeals declaring the bulk surveillance program unauthorized, and instead grant the NSA power to continue bulk collection for six months.
“This court may certainly consider ACLU v Clapper as part of its evaluation of the government’s application, but second circuit rulings do not constitute controlling precedent for this court,” Justice Department national security chief John A. Carlin wrote in the 2 June application. Carlin pointed to a six months transition period provided in the USA Freedom Act as a reason to permit an “orderly transition” of the NSA’s domestic bulk collection program.
On 7 May, the second circuit court ruled that Section 215 of the USA Patriot Act, cannot be legitimately interpreted to allow the bulk collection of domestic calling records and that the government misinterpreted the act’s authorization of data collection as “relevant” to an ongoing investigation to permit bulk collection.
TheGuardian notes that the second circuit court of appeals is supposed to bind only the circuit’s lower courts, but the unique and secretive nature of the FISA court has left confusion over which public courts it is obliged to follow. “While the FISA court isn’t formally bound by the second circuit’s ruling, it will certainly have to grapple with the second circuit’s interpretation of the ‘relevance’ requirement. The (court) will also have to consider whether Congress effectively adopted the second circuit’s interpretation of the relevance requirement when it passed the USA Freedom Act,” said Jameel Jaffer, the deputy legal director of the American Civil Liberties Union (ACLU).
The second circuit court did not issue an injunction halting the NSA’s domestic bulk collection program. It instead suggested the then-congressional debate over the USA Freedom Act and the resulting legislation as the appropriate solution to the domestic bulk collection debate.
The ACLU is seeking an injunction in a federal district court should the FISA court grant the government’s surveillance request, but Carlin has already informed the FISA court that “in the event an injunction of some sort were to issue by the district court, the government would need to assess, in light of the nature and scope of whatever injunction the district court issued, its ability to carry out authority granted under an order issued by this court.”
“The only federal appeals court to have considered this surveillance concluded, after very careful analysis, that it’s unlawful. It’s disturbing and disappointing that the government is proposing to continue it,” said Jaffer.
Last Friday, FreedomWorks filed a motion before the FISA court, asking it to reject the government’s surveillance request as it violates the fourth amendment’s prohibition on unreasonable searches and seizures. FISA court judge Michael Moseman gave the Justice Department until this coming Friday to respond — and barred the Obama administration from arguing that FreedomWorks lacks the standing to petition the court.
