A federal appeals court wants a second look at the NSA’s massive data mining campaign on typical Americans who have no ties to terrorism.
On Thursday the 2nd Court of Appeals in Manhattan revived a challenge to a controversial National Security Agency program that sweeps up phone records on millions of Americans, saying the program was not authorized by Congress.
Reuters reported that the court said a lower court judge erred in dismissing a lawsuit by the American Civil Liberties Union that challenged the constitutionality of the surveillance on the ground it violated people’s privacy.
NSA insider Edward Snowden blew the whistle on the agency’s vacuum-cleaner approach of sweeping up everyone’s data, called “bulk telephony metadata.” That was in 2013 and Snowden has been living in exile in Russia as a wanted man by the U.S. government ever since.
In December 2013, U.S. District Judge William Pauley in Manhattan tossed out the ACLU suit, saying the NSA program was a “counter-punch” by the government to aid its efforts to fight terrorism.
But now Circuit Judge Gerard Lynch, writing for a unanimous three-judge appeals court, said Congress did not authorize the NSA program under a section of the USA Patriot Act governing how the government may collect information to fight terrorism.
“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” Lynch wrote in a 97-page decision.
“Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism,” he added. “But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate.”
The three-judge panel said the harvest and five-year storage of Americans’ call records are not authorized by Section 215 of the Patriot Act, a law passed in 2001 weeks after the 9/11 terror attacks.
The judges said if they accepted the government’s arguments, Section 215 could be stretched to allow boundless collection of metadata on Americans from social media platforms, health care providers and banks.
The unanimous decision in ACLU v. Clapper vacated a ruling upholding the NSA’s bulk collection of telephone metadata, which has continued since 2006, and instructed the lower court to consider whether to order the government to stop the surveillance.
Before Thursday, only one other federal judge, District Judge Richard Leon, had ruled against the program. Leon, a George W. Bush appointee, ruled in December 2013 in U.S. District Court for the District of Columbia that the “almost Orwellian” collection probably violates the Fourth Amendment. That decision, in a case brought by legal activist Larry Klayman, is being reviewed by a panel of the U.S. Court of Appeals for the D.C. Circuit, which heard oral arguments in November.
Cindy Cohn, executive director of the Electronic Frontier Foundation, told U.S. News and World Report the appeals court ruling is “a great and welcome decision and it ought to make Congress pause to consider whether the small changes it’s making in the USA Freedom Act are really sufficient.”
Cohn participated in oral arguments supporting Klayman’s win and has been involved with a third appeal against the collection in the 9th Circuit. She said the decision “rips apart the government’s interpretation” of words such as “relevance” and “investigation” under Section 215.
“I don’t think that Congress alone giving an endorsement to these words would be sufficient under the court’s analysis,” she says. “I think Congress would actually have to say very clearly what it was doing in order to get over that and then the question is whether that would survive [constitutional analysis].”
Klayman is less pleased.
“It was a total cop out,” he told U.S. News. “We look for the D.C. Circuit to put its foot down and end this unconstitutional, illegal abuse of the surveillance system.”
“Who’s to say, now that we’ve seen how the government violates the law, they don’t grab [the data] from Verizon and the other carriers surreptitiously?” he says. “That’s why there needs to be a clear-cut decision saying this is unconstitutional. It’s not a question of this statute or that statute, it’s a violation of the Fourth Amendment.”
Klayman said the court’s decision not to issue an injunction to the ACLU, citing pending legislation, “is totally inappropriate, it’s playing politics” – a sentiment likely shared by some supporters of the collection within government.
The Charlottesville, Va.-based Rutherford Institute filed a friend-of-the-court brief in the case likening the program to the abusive colonial-era general warrants and writs of assistance, which prompted the Framers of the U.S. Constitution to adopt the Fourth Amendment’s ban on unreasonable searches and seizures.
“James Madison, who was one of the primary drafters of our Constitution, once warned that we should take alarm at the first experiment with our liberties,” said John W. Whitehead, president of The Rutherford Institute and author of “Battlefield America: The War on the American People.”
“While it is heartening that at least some Americans are starting to heed Madison’s warning, this ruling doesn’t alter the fact that the government not only views the citizenry as suspects but treats them as suspects, as well,” Whitehead added. “The fact that the NSA is routinely operating outside of the law and overstepping its legal authority by carrying out surveillance on American citizens is a result of giving the government broad powers and allowing government agencies to routinely sidestep the Constitution.”
Klayman, founder of Freedom Watch, said the Obama administration and its enablers in the telecommunications industry must be held to account.
“They have created a situation that the government can attempt to control every aspect of our lives, in effect blackmail the American people into submission, by having all their confidential information, and the people were not told this was happening. It was kept secret,” Klayman told WND last year in an exclusive interview. “We brought the case for everyone in this country but in particular Mr. Charlie Strange, the father of a Navy Seal who tragically died in an Aug. 6 2011 helicopter crash in Afghanistan,” in which the Taliban shot down the helicopter. Were 22 navy seals on board. Son Michael was a Seal.
Klayman gives an example of how one man was harmed by the NSA policy of unwarranted spying.
Vice President Joe Biden, ostensibly with the approval of President Obama in an election year, wanted to boast that Osama bin Laden had been killed, and he said publicly that it was Seal Team Six that carried out the heroic mission. That information caused the Taliban to target Navy Seals in Afghanistan, resulting in the helicopter being shot down with 22 men aboard.
“Since that happened Charles Strange and others who lost sons have been very critical of the administration, of Vice President Biden and the military brass that sent these kids into battle without letting them defend themselves. That they have to be fired upon first before they could fire back. They’re being killed in droves,” Klayman explained.
“So that criticism gave my client reason to believe there was wiretapping of his cell phone. There are some very strange things on his cell phone that suggest, more than suggest but show, that someone’s been getting into that cell phone. And he was able to confirm that it was likely the U.S. government that did it.”
Klayman believes this may be the last opportunity to peacefully, legally wage a second American revolution through the court system.
“Our country has been taken from us. We don’t have those freedoms that John Adams and Ben Franklin fought for,” he said. “They’ve been removed. This is a chance to use the courts to try to take the country back. If these judges don’t follow the law then we’re back to 1776, God for bid, but that’s where we’re being pushed. The American people are being pushed up against the wall. And unless our judicial institutions start working and representing the American people, there is going to be catastrophe in this country. I don’t want to see it, but that’s what’s going to happen.”