Court ruling upends congressional surveillance fight

A sweeping appeals court ruling against government surveillance powers on Thursday could recast Congress’s fight over expiring provisions of the Patriot Act.

The federal court decision could strengthen the hand of Capitol Hill’s civil libertarians who are facing an uphill battle to make significant reforms to the National Security Agency (NSA) in the next two and a half weeks.

{mosads}The ruling ”should help propel Congress to end the program as it is currently structured, and only allow the government to request data from the telephone companies after individualized court approval,” Rep. Adam Schiff (Calif.), the top Democrat on the House Intelligence Committee, said in a statement on Thursday morning.

“It also shows that a straight reauthorization is not only politically untenable but on shaky legal ground as well.”

Earlier on Thursday, the Second Circuit Court of Appeals ruled that the NSA’s bulk collection of Americans’ phone records “exceeds the scope of what Congress has authorized” and, as such, is illegal. The decision was a major victory for critics of the NSA and offered the firmest legal blow yet to the spy agency.

The provision of the Patriot Act that the government has used to justify that program, known as Section 215, is scheduled to expire at the end of the month.

Next week, the House is scheduled to vote on legislation that would extend that provision while also ending the NSA’s bulk phone records collection. Instead, the bill would force the agency to get a court order and search private companies’ records using a “specific selection term.” House lawmakers are expected to easily pass the legislation, called the USA Freedom Act.

The path forward in the Senate is much less certain, however.

Senate Majority Leader Mitch McConnell (R-Ky.) has pushed for a “clean” reauthorization of the current law through 2020. It was unclear whether that type of effort could pass the chamber before Thursday’s ruling, and now the political calculus is perhaps more difficult than ever.

“The dragnet collection of Americans’ phone records is unnecessary and ineffective, and now a federal appellate court has found that the program is illegal,” said a joint statement from Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), the two Senate leaders behind the USA Freedom Act.

“Congress should not reauthorize a bulk collection program that the court has found to violate the law,” they added. “We will not consent to any extension of this program.”

In addition to ending the current bulk phone records collection program and adding new transparency measures, the legislation would also add a new expert panel to the secretive Foreign Intelligence Surveillance Court (FISC), which oversees government spying yet currently only hears arguments from the government requesting approval.

In a concurring opinion Thursday, Judge Robert Sack — one of the three judges on the appeals court panel — seemed to offer support for just that.

“It may be worth considering that the participation of an adversary to the government at some point in the FISCʹs proceedings could similarly provide a significant benefit to that court,” he wrote. “The FISC otherwise may be subject to the understandable suspicion that, hearing only from the government, it is likely to be strongly inclined to rule for the government.  

“And at least in some cases it may be that its decision‐making would be improved by the presence of counsel opposing the governmentʹs assertions before the court,” he wrote.

At the same time, however, the ruling may only cause the NSA’s defenders to dig in even harder.

Sen. John McCain (R-Ariz.), who has defended the intelligence regime, said on Fox News he was “very worried” about the decision.

“We have to have the ability to monitor these communications,” he said. “It’s pretty clear that 9/11 could have been prevented if we had known about some of the communications that were linked to those who committed the terrible atrocity of 9/11.”

— Ben Kamisar contributed