By Mark Hamblett, From New York Law Journal

The National Security Agency is exceeding its power in the fight to thwart terrorism with its controversial bulk collection of telephone metadata, the U.S. Court of Appeals for the Second Circuit ruled Thursday.

A three-judge panel said the surveillance program exceeded the authority given the executive branch by Congress in the Foreign Intelligence Surveillance Act, as amended by the USA Patriot Act, on more than one occasion following the terrorist attacks of Sept. 11, 2001.

Southern District Judge William Pauley had granted the government’s motion to dismiss the challenge to §215 of the Patriot Act in 2013, finding the section precludes judicial review and that, even if he were to reach the merits, a challenge to the scope of the statute would fail and the law does not violate the First or Fourth Amendments (NYLJ, Dec. 30, 2013).

But Circuit Judges Gerard Lynch and Robert Sack and Southern District Judge Vernon Broderick, sitting by designation, reversed in American Civil Liberties Union v. Clapper, 14-42-cv.

Without reaching the constitutional questions raised by the ACLU, the court said the statutory scheme does not, in fact, preclude review by Article III courts and that “the bulk metadata program is not authorized by §215.”

“I think it [the decision] should end any debate about whether the NSA’s program is lawful,” the ACLU’s Jameel Jaffer said. “But it also has broader significance because the same problematic legal theory that underlies the phone record program underlies other NSA mass surveillance as well.”

The decision, authored by Lynch, couldn’t come at a better time for those who allege widespread violations of American citizens’ civil liberties in government surveillance programs designed to detect and thwart terror attacks both domestic and foreign. Absent Congressional action, §215 is set to expire on June 1.

“This only makes it clearer that Congress should allow Section 215 to expire,” Jaffer said.

The Bulk Telephony Metadata Program does not record individual programs, but it sweeps up the records that include the time and duration of calls to and from the United States and allows the NSA to conduct algorithmic data analysis it says can help it connect the dots in terrorism prevention.

Lynch drew the parallel between this controversy and the revelations in the 1970s over warrantless government domestic surveillance that was struck down by the U.S. Supreme Court, exposed by the U.S. Senate’s Church Committee and led to the creation of the Foreign Intelligence Surveillance Act of 1978.

The act created the Foreign Intelligence Surveillance Court which reviews government applications for surveillance in secret.

The circuit heard oral arguments in the case last September, when Assistant U.S. Attorney Stuart Delery told the panel that Congress knew what it was doing when it reauthorized the Patriot Act (NYLJ, Sept. 3, 2014).

Lynch targeted Delery’s argument that the court lacked jurisdiction to review a law that Delery said had been vetted by all three branches of government—with the Foreign Intelligence Surveillance Court representing the judiciary.

“You actually don’t want us to address whether it was authorized by one of them,” Lynch told Delery.

The government began mining data in the wake of 9/11, but the program did not win approval from the Foreign Intelligence Surveillance Court until 2006.

After the measure came up for renewal in 2010 and again in 2011, Senators Ron Wyden, D-Oregon, and Mark Udall, D-Arizona, of the Senate Select Committee on Intelligence expressed alarm in 2011, saying the government had adopted a “secret interpretation” of the §215 that would leave Americans “stunned.”

The ACLU sued in 2013 after it learned that its own records had been collected by the government from a compliant Verizon.

At oral argument, the ACLU’s Alex Abdo told the court that many members of Congress had not even read the provision when it came up for renewal. Abdo decried the NSA assumption of power and said it was up to the circuit to take on challenge “when the government scales up an intelligence operation from targeted to dragnet.”

But the circuit’s ruling did not end the program immediately.

Lynch said, “In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape,” Lynch said.

“If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization,” he said. “If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised.”

Congress is currently debating the issue, with Republicans and Democrats in the House agreeing that the bulk collection of records should end, but Senate leaders arguing in support of a measure to keep the status quo. However, Senate intelligence committee member Richard Burr, R.-North Carolina, said he is open to compromise on the measure.

U.S. Attorney General Loretta Lynch said the government is reviewing the court’s decision. She added that the June 1 expiration of the Patriot Act provisions provides opportunities to reauthorize the program “in a way that does preserve its efficacy and protect privacy.”

The House Judiciary Committee last month passed a bill known as the USA Freedom Act, which seeks to codify President Barack Obama’s proposal to end the NSA’s collection and storage of phone records and instead would have the NSA request records held by phone companies under a court order for terrorism investigations.

IMAGE: National Security Agency campus in Fort Meade, Md. AP/Patrick Semansky

For more on this story go to: http://www.newyorklawjournal.com/id=1202725756615/Circuit-NSA-Phone-Record-Collection-Illegal#ixzz3ZYUj6D97

Related story:

Judge in NSA case joins debate over surveillance court reforms

By Zoe Tillman, From Legal Times,

A judge on the U.S. Court of Appeals for the Second Circuit added his voice Thursday to the debate over the need for a privacy advocate to rebut the government in secret proceedings in the Foreign Intelligence Surveillance Court.

The Second Circuit found the National Security Agency’s bulk collection of Americans’ phone metadata “exceeds the scope of what Congress has authorized.” The 97-page opinion focused on the NSA’s operations and what Congress intended. The court did not rule on the constitutionality of the program.

In a separate concurring opinion, Judge Robert Sack reflected on the secrecy of the Foreign Intelligence Surveillance Court, which reviews the government’s requests to carry out surveillance against foreign targets. The court, staffed by U.S. district judges from across the country, has repeatedly authorized the NSA bulk collection program.

Sack noted that unlike other federal courts, the surveillance court doesn’t operate under the “strong presumption” that its proceedings are open to the public. That secrecy is mostly unavoidable, Sack said, since “information cannot simultaneously be kept secret and made public at the same time—at least not this side of quantum physics.”

But the absence of a “robust adversary system,” Sack wrote, “may be another matter.” There is no opposing counsel involved when the government makes its surveillance requests. Sack said including an adversary could bolster public confidence and generally improve the court’s decision-making.

As Congress has considered surveillance court reforms in recent years—the Second Circuit panel noted that reform legislation was introduced in the U.S. House of Representatives last month—several current and retired federal judges have weighed in, especially on the inclusion of a special privacy-focused advocate.

Last summer, U.S. District Judge John Bates in Washington, then director of the Administrative Office of the U.S. Courts and a former judge on the surveillance court, wrote a letter to the Senate Judiciary Committee expressing concerns that some of the proposed reforms, including the appointment of a privacy advocate, could undermine the court’s “twin goals of protecting privacy and national security.”

Judge Alex Kozinski of the Ninth Circuit wrote to the Judiciary Committee shortly after clarifying that Bates was not speaking on behalf of the federal judiciary’s policymaking body, the Judicial Conference.

The issues Bates raised in his letter “are of profound significance and merit the closest consideration,” Kozinski wrote. “But, having given the matter little consideration, and having had no opportunity to deliberate with other members of the Judicial Conference, I have serious doubts about the views expressed by Judge Bates.”

Other judges have directly advocated for a more adversarial system in the surveillance court.

Sack gave a nod to the intrajudiciary debate in footnotes in his opinion on Thursday. On the one hand, he noted, members of each branch of government had supported some type of opposing counsel or privacy advocate in the secret proceedings. Sack then pointed to Bates’ letter as a counterpoint.

Ultimately, Sack said, Congress must decide.

“We judges have an often critical part to play in resolving these issues,” Sack wrote, “but only by addressing them in individual cases, according to the law and Constitution, and as best we can.”

IMAGE: Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit

Rick Kopstein

For more on this story go to: http://www.nationallawjournal.com/legaltimes/id=1202725745324/Judge-in-NSA-Case-Joins-Debate-Over-Surveillance-Court-Reforms#ixzz3ZYjjoqNH