Obama lawyers asked secret court to ignore public court's decision on spying
Obama lawyers asked secret court to ignore public court's
decision on spying
Justice Department’s national security chief cites
six-month transition period in the USA Freedom Act as a reason to turn the bulk
surveillance spigot back on
By Spencer Ackerman
Tuesday 9 June 2015 07.00 EDT Last modified on Tuesday 9
June 2015 09.06 EDT
The Obama administration has asked a secret surveillance
court to ignore a federal court that found bulk surveillance illegal and to
once again grant the National Security Agency the power to collect the phone
records of millions of Americans for six months.
The legal request, filed nearly four hours after Barack
Obama vowed to sign a new law banning precisely the bulk collection he asks the
secret court to approve, also suggests that the administration may not
necessarily comply with any potential court order demanding that the collection
stop.
US officials confirmed last week that they would ask the
Foreign Intelligence Surveillance court – better known as the Fisa court, a
panel that meets in secret as a step in the surveillance process and thus far
has only ever had the government argue before it – to turn the domestic bulk
collection spigot back on.
Justice Department national security chief John A Carlin
cited a six-month transition period provided in the USA Freedom Act – passed by
the Senate last week to ban the bulk collection – as a reason to permit an
“orderly transition” of the NSA’s domestic dragnet. Carlin did not address
whether the transition clause of the Freedom Act still applies now that a
congressional deadlock meant the program shut down on 31 May.
But Carlin asked the Fisa court to set aside a landmark
declaration by the second circuit court of appeals. Decided on 7 May, the
appeals court ruled that the government had erroneously interpreted the Patriot
Act’s authorization of data collection as “relevant” to an ongoing
investigation to permit bulk collection.
Carlin, in his filing, wrote that the Patriot Act
provision remained “in effect” during the transition period.
“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,” Carlin wrote in the 2
June application. Instead, the government asked the court to rely on its own
body of once-secret precedent stretching back to 2006, which Carlin called “the
better interpretation of the statute”.
The second circuit court of appeals is supposed to bind
only the circuit’s lower courts. But the unique nature of the Fisa court –
whose rulings practically never became public before whistleblower Edward
Snowden’s revelations – has left ambiguous which public court precedents 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 ACLU, which brought
the lawsuit the second circuit decided.
The second circuit did not issue an injunction stopping
the bulk collection. It deferred to the then-ongoing congressional debate over
the USA Freedom Act, citing legislation as the more appropriate mode of relief.
The ACLU, now confronting a potential return of bulk surveillance via the Fisa
court, is considering seeking an injunction in the appropriate federal district
court should the Fisa Court grant the government surveillance request.
Yet Carlin’s request to the Fisa court suggested the
Obama administration would not consider the second circuit the last word – and
might seek to challenge the injunction.
Lone wolves, roving wiretaps, business records – all
these technical terms cloud the real question on everyone’s minds: is the phone
chatter of ordinary Americans now immune from government surveillance?
Carlin told the Fisa court that the government was
“considering its litigation options in regard to the second circuit’s opinion”,
which would have to mean a challenge before the US supreme court.
Carlin added in a footnote: “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.”
But the Fisa court must first decide whether the new
bulk-surveillance request is lawful.
On Friday, the conservative group FreedomWorks filed a
rare motion before the Fisa court, asking it to reject the government’s
surveillance request as a violation of 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 explicitly barred
the government from arguing that FreedomWorks lacks the standing to petition
the secret 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, of the ACLU.
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