- - Sunday, October 20, 2013

The Obama administration is doing all it can, short of dispatching a squad of park rangers to barricade the justices’ parking spaces, to prevent the Supreme Court from reviewing the National Security Agency’s domestic spying enterprise. The administration’s lawyers insist that lower courts can deal with the spy program, since the issue is too new to bother the high court with it. This is an argument too clever by half, since the administration further argues that lower courts have no jurisdiction in the first place.

At issue is the government collusion with telephone companies in gathering the “metadata” for every telephone call placed in the United States. This information is revealing, since it tells the government who called whom, and when, how long they talked, and where they were when they called, as measured by the caller’s GPS location coordinates. The information is stored in an enormous database accessible to intelligence agents who could look into the database to see who an errant wife or rascally boyfriend has been talking to. (Would a government snoop do that?)

The Electronic Privacy Information Center has appealed directly to the high court for relief, since it alone has the authority to monitor Foreign Intelligence Surveillance Court orders authorizing the collection of information on Americans. The privacy center argues that no other court has the authority to rule on the constitutionality of the secret court orders, which the Department of Justice will neither confirm nor deny.

The spying program relies on Section 215 of the Patriot Act, which enables the shadowy Foreign Intelligence Surveillance Court to authorize warrants for almost any records, including telephone records, so long as the information is “relevant” to an authorized investigation. The spies get to decide what’s relevant, since judges on this court approve nearly every application. In its petition to the high court, the Electronic Privacy Information Center argues that it’s not possible that every single calling record made in the United States can be considered “relevant” to an investigation. When two teenagers in Peoria get on the telephone to gossip about who’s taking whom to the prom, it’s a good bet their conversation sheds no light on an al Qaeda scheme to blow up something in Chicago.


The Justice Department, on the other hand, insists in a brief filed last week that the spying program is precisely what Congress intended when it enacted and reauthorized the Patriot Act. It argues that the weight of precedent supports the gathering of “large volumes of information” so long as there’s something in the flood of emails or telephone calls collected that “could directly bear on the matter.”

Not so, says Rep. F. James Sensenbrenner Jr. of Wisconsin, who understands congressional intent best because he was the primary author of the Patriot Act. The congressman, a Republican, is so angered by the federal government’s distortion of the act that he has drafted legislation which he says will put the National Security Agency’s metadata program “out of business.” He calls the legislation the Uniting and Strengthening America by Fullling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring Act, or, mercifully shortened for everyday use, the USA Freedom Act.