- The Washington Times - Thursday, May 7, 2015

The NSA’s phone snooping program is probably illegal and certainly can’t be justified under the Patriot Act, a federal appeals court ruled Tuesday in a momentous decision that could rewrite the way the government has to go about gathering intelligence.

The ruling, by the 2nd U.S. Circuit Court of Appeals in New York, also puts tremendous pressure on Congress, which must decide this month whether to renew Section 215 of the Patriot Act — the very provision that the judges called into question in their ruling.

The judges signaled that even a temporary extension could be seen as official approval of the National Security Agency program and other expansive snooping activities.

NSA critics said Congress should move quickly to confirm the decision by passing the USA Freedom Act, a bill that would permanently nix the Patriot Act’s bulk collection powers.

NSA supporters, meanwhile, took to the Senate floor in the hours after the court’s decision to plead for more time to debate the phone snooping program.

In its 97-page unanimous ruling, the three-judge appeals panel said the Patriot Act is broad but not unlimited, and doesn’t cover the kind of open-ended snooping that the Bush and Obama administrations have defended.

“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” the judges wrote.

The case turned on Patriot Act law and never reached the weighty constitutional questions raised in 2013 by the American Civil Liberties Union, but the judges seemed skeptical that the NSA program would pass muster under the Bill of Rights.

Even without a big constitutional decision, the ruling was significant. The judges established limits on the Patriot Act and held that regular courts have power to review secret intelligence programs, rejecting the administration’s argument that such authority belongs only to the secret Foreign Intelligence Surveillance Court.

The appeals judges didn’t immediately cancel the NSA program, but sent the matter back to a lower court. They also said the judiciary would be watching what signals Congress sends as it debates the Patriot Act over the next three weeks.

Section 215, which allows federal agents to demand that businesses turn over records without having to secure regular court warrants, is set to sunset June 1 under the law.

If lawmakers reauthorize the Patriot Act with the intent to allow for bulk collection, that could change the court’s judgment that the NSA program violates the law. The judges then would have to decide whether the program is constitutional.

If Congress writes a law limiting phone snooping, that would officially end the NSA program.

One other option would be for Congress to do nothing and allow Section 215 to expire. If that happens, the program and the rest of the government’s ability to demand records from private businesses would disappear.

Senate Minority Leader Harry Reid, Nevada Democrat, called for an immediate vote on a rewrite of Section 215. A bipartisan bill, the USA Freedom Act, would preserve the Section 215 powers to collect business records, but would ban the government from collecting them in bulk. The House is expected to pass the legislation next week with the support of Republican leaders, including Speaker John A. Boehner of Ohio.

Senate Republicans are far more conflicted. A number of them insist that the NSA needs the authority to snoop.

“One day there will be an attack that’s successful. And the first question out of everyone’s mouth is going to be, ‘Why didn’t we know about it?’ And the answer better not be because this Congress failed to authorize a program that might have helped us know about it,” said Sen. Marco Rubio of Florida, who is running for the Republican presidential nomination.

NSA supporters are led by Majority Leader Mitch McConnell, Kentucky Republican, who is trying to run out the clock on the June 1 deadline, leaving Congress with little choice but to pass an extension. He has introduced a bill that would extend all of the powers, as is, through 2020. Others say a short-term extension is also possible.

Under the NSA program, records of Americans’ phone calls are stored for five years. The records include the numbers, times and durations of those calls, but not the contents. The information is queried only when investigators suspect a number is associated with terrorism.

The program was revealed by former government contractor Edward Snowden.

Opponents argue that the government is overstepping its bounds by collecting the data and say the program has not been proved to stop any attacks. Defenders counter that the information plays a role in investigations and that no abuse has been reported.

The judges generally sided with the opponents, rejecting the administration’s argument that the program was similar to a grand jury’s broad investigative powers.

“If the government is correct, it could use Section 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including email and social media information) relating to all Americans,” the judges wrote.

The court also rejected the administration’s argument that bulk collection is valid because a select group of lawmakers knew about the program when Congress reauthorized Section 215 of the Patriot Act in 2010 and 2011. The judges said it’s impossible to determine whether Congress intended to support bulk collection if lawmakers were intentionally kept in the dark about it.

The ACLU said the ruling also could affect other government snooping programs.

“The same defective legal theory that underlies this program underlies many of the government’s other mass-surveillance programs,” said Jameel Jaffer, the lead ACLU attorney in the case. “The ruling warrants a reconsideration of all of those programs, and it underscores once again the need for truly systemic reform.”

The judges in the ruling — two of them appointed by President Obama and one by President Clinton — wrote that collecting the records wasn’t so much a “search” as much as it was a “seizure” of property in constitutional terms.

They also rejected the administration’s argument that storing the data is not a violation because most of it is not targeted by authorities.

The judges specifically rejected the government’s claim that a 2006 change in the Patriot Act, which added the word “relevant” to the definition of what records can be collected, was intended to give backing to the phone snooping program.

Rep. F. James Sensenbrenner Jr., the Wisconsin Republican who wrote the 2001 legislation, said the judges got it right and that he never intended for the provisions to allow for bulk collection.

“This program is illegal and based on a blatant misinterpretation of the law,” said Mr. Sensenbrenner, who is a sponsor of the USA Freedom Act.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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