The NSA, FISA, And The President: Part II | VALID | #TWIBnation

The NSA, FISA, And The President: Part II

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If only there were some way to challenge executive power when the President goes to far …

Oh, yeah. There is:

NEW YORK – The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.

You can down load a copy of the ACLU’s Complaint in that lawsuit, American Civil Liberties Union, et al. v. James R. Clapper, et al., No.  13 CIV 3994 (U.S. Dist. Ct. S.D. NY), here.

The ACLU v. Clapper Complaint explains:

1. This lawsuit challenges the government’s dragnet acquisition of Plaintiffs’ telephone records under Section 215 of the Patriot Act, 50 U.S.C. § 1861. In response to information published by the media, the government has acknowledged that it is relying on Section 215 to collect “metadata” about every phone call made or received by residents of the United States. The practice is akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations.

2. The government has confirmed the authenticity of an order issued six weeks ago by the Foreign Intelligence Surveillance Court (“FISC”) requiring Verizon Business Network Services Inc. (“VBNS”) to turn over, every day, metadata about the calls made by each of its subscribers over the three-month period ending on July 19, 2013. Government officials have indicated that the VBNS order is part of a program that has been in place for seven years and that collects records of all telephone communications of every customer of a major phone company, including Verizon, AT&T, and Sprint.

ACLU v. Clapper Complaint, ¶¶ 1-2, p. 2 (footnote omitted).

The Complaint goes on to provide helpful background information with regard to the passage of FISA itself and the subsequent expansion of FISA Section 215 via the Patriot Act:

17. Section 215 of the Patriot Act is often referred to as FISA’s “business records” provision. When originally enacted in 1998, this provision permitted the FBI to apply to the FISC for an order to obtain business records of hotels, motels, car and truck rental agencies, and storage rental facilities.

18. Section 215 broadened this authority by eliminating any limitation on the types of businesses or entities whose records may be seized. In addition, Section 215 expanded the scope of the items that the FBI may obtain using this authority from “records” to “any tangible things (including books, records, papers, documents, and other items).”

19. Section 215 also relaxed the standard that the FBI is required to meet to obtain an order to seize these records. Previously, FISA required the FBI to present to the FISC “specific and articulable facts giving reason to believe that the person to whom the records pertain [was] a foreign power or an agent of a foreign power.” In its current form, Section 215 requires only that the records or things sought be “relevant” to an authorized investigation “to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.”

20. Production orders issued under Section 215 are accompanied by gag orders generally forbidding recipients from revealing “that the Federal Bureau of Investigation has sought or obtained tangible things.” Recipients may challenge gag orders “[n]ot less than 1 year after the date of the issuance of the production order.” If a recipient challenges a gag order, the FISC must treat the government’s claim “that disclosure may endanger the national security of the United States or interfere with diplomatic relations . . . as conclusive.”

ACLU v. Clapper Complaint, ¶¶ 17-20, pp. 4-5.

Despite the broad scope of authority under Section 215, as amended by the Patriot Act, and despite the minimal standards necessary to establish the government’s entitlement to information under that section, the ACLU and its co-plaintiffs allege the government’s “mass acquisition of Americans’ call details,” which “extends beyond customers of VBNS, encompassing all wireless and landline subscribers of the country’s three largest phone companies,” “exceeds the authority granted by 50 U.S.C. § 1861 [the technical statutory citation for FISA Section 215], and thereby violates 5 U.S.C. § 706 [Section 706 of the Administrative Procedure Act]”; and further violates the First and Fourth Amendments to the U.S. Constitution. ACLU v. Clapper Complaint, ¶¶ 34, 36-38, pp. 10-11.

Without engaging in fairly extensive legal research, I can’t say whether the ACLU’s allegations are well grounded, although I am sympathetic to its position. I do note, however, that based on previous litigation involving the Bush Administration’s domestic surveillance activities, the ACLU and its co-plaintiffs may have some difficult legal hurdles to overcome. As I mentioned in my previous post on the subject, even in its initially successful challenge to Bush’s warrantless wiretapping program, the District Court dismissed the ACLU’s broader challenge to the NSA’s data-mining program under the state secrets privilege; and on appeal, the Sixth Circuit dismissed the case in its entirety on the grounds that the ACLU and its co-plaintiffs in that case lacked standing to challenge the Administration’s actions.

Regardless of those legal obstacles, and regardless of whether you agree or disagree with the ACLU’s legal arguments here, this is how you address the complex legal and constitutional issues involved in the current Administration’s surveillance programs: In a court of law, with competent legal counsel and an experienced judge; with all sides, including the government, having a full and fair opportunity to present their best arguments and protect their legal interests. It’s not as satisfying as tweeting in ALL CAPS or writing blog posts and op-ed columns, but it’s how we protect and defend civil liberties in the United States of America.

David Von Ebers

An evil trial lawyer from Chicago, which makes me almost as bad as Barack Obama himself. Except, I am a Cubs fan, unlike our President, and so, as the kids say, I AM SHAME. I blog about legal issues, politics, sports, music (that long-haired rock 'n roll music all the kids are into), and, frequently, the interaction between any and all of the above. When I'm not busy undermining the Constitution or circumventing your freedoms, I run, watch too much sports on the teevee, and hang out with my long-suffering wife and three kids.

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  1. Randle Aubrey June 12, 2013 at 6:59 pm

    Didn’t the ACLU pretty much give the Patriot Act a pass when it was first introduced by the Bush Administration?

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