The NSA Is Not Above The Law

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Last Thursday’s 2nd Circuit Court of Appeals ruling in ACLU v. Clapper threw a bomb into the middle of the debate over renewing the legal authority governing the NSA’s mass metadata surveillance programs. In a unanimous ruling, the Justices held that such programs, untethered to the limiting factor of what is relevant to a specific investigation, were never authorized under Section 215 of the PATRIOT Act.

 

Bob Litt, the general counsel of the Office of the Director of National Intelligence, scrambled to respond, arguing at a panel on transparency in DC on May 8 that the ruling is not binding on the FISC, that it is not currently in effect, and that it will be overturned soon anyway. Senate Intelligence Committee Chairman Richard Burr (R-NC), who vehemently supports mass NSA surveillance, is contending that “I think the statutory language today allows the NSA to do exactly what they’re doing […] I have a very tough time thinking the Supreme Court would look at this law […] and come to the conclusion that we didn’t empower the NSA to do bulk collection.” In the same article, Stewart Baker, the former general counsel for the NSA, is reported as deriding the ruling as a “97-page law review article” whose “significance is close to zero.”

 

Collectively, these assertions are the public face of what’s nothing less than a desperate effort by the NSA to declare itself literally above the law. But let’s take them one at a time, shall we?

  1. Does a ruling by a Court of Appeals override the interpretation by a FISC judge that mass metadata surveillance is authorized by Section 215 of the PATRIOT Act?

 

The law setting up the Foreign Intelligence Surveillance Court, or FISC, is the Foreign Intelligence Surveillance Act of 1978. § 106 of that Act specifies that “decisions under this section that electronic surveillance was not lawfully authorized or conducted … shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.”

 

Decisions “under this section” as to the lawfulness or otherwise of surveillance, are decisions taken by the FISC. Such decisions are stated to be binding on all courts, except a United States Court of Appeals and the Supreme Court. If FISC decisions bind all courts except Courts of Appeals and the Supreme Court, then by definition decisions by the Courts of Appeals and the Supreme Court must bind the FISC. So Bob Litt is either not familiar enough with FISA, or is purposely misstating the law.

 

  1. Does the 2nd Circuit Court’s ruling coming into effect depend on a further ruling by the Supreme Court?

 

The 2nd Circuit stayed their ruling, and remanded to the district court the question of whether the program would continue, simply because Congress is currently actively considering what to do with § 215. But they also gave guidance to the district court on how to react to Congress:

 

[T]he statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame.  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.  There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches […] If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised.  If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end…”

 

The Court envisions three possible outcomes here, other than a simple lapse of § 215.

 

(A) Congress may choose to pass a revised Section 215, which explicitly authorizes mass metadata collection. This would be politically unpalatable in exact proportion to the explicitness of the authorization. If that happens, then the appellants could still receive relief for their past injury from an unlawful program, and the constitutional issues the Court did not reach would still remain alive.

 

(B) Congress may, as Senator Burr has been pushing for, reauthorize Section 215 as is; but Senator Burr’s personal belief that that will still mean the mass metadata surveillance programs are lawful and authorized, is of much less weight than the 2nd Circuit’s statement here that “if Congress reenacts § 215 without expanding it to authorize the telephone metadata program, […] the program will end.” Burr cannot, in other words, make the current § 215 say what a Court of Appeals has determined that it does not say.

 

(C) Congress may authorize a substantially reformed metadata surveillance program, conforming to the ruling, in which case that would raise “constitutional issues” that will “certainly differ considerably from those currently raised”, presumably mooting this ruling.

 

So, whether or not this ruling is mooted is dependent not on the Supreme Court, but on the choices Congress makes. The USA FREEDOM Act has now passed the House, and enjoys substantial, though possibly not sufficient, support in the Senate. If it passes unchanged, it’s probably not very compatible with the 2nd Circuit Court ruling, because it regulates mass metadata surveillance by limiting it to specific selection terms rather than by analogizing it to a grand jury subpoena process, and by allowing two “hops” of data collection from a target rather than a more-likely-conforming one hop. The district court would, if it passes, have a difficult task before it. Congress would have weighed in with a brand-new scheme that is in some ways looser than what the 2nd Circuit wants; but to rule that scheme incompatible with the 2nd Circuit would be interpreted as activist. It’s more politically likely that the district court would order relief for past unlawful surveillance and allow the new scheme time to come into being, allowing future lawsuits to be brought only when further injury is identified under that new scheme.

It’s for precisely these kinds of reasons that we continue to strongly oppose the passage of the USA FREEDOM Act. Allowing § 215 to lapse would much more clearly undercut mass metadata surveillance. The ruling also makes explicit that the preferred strategy of Senator Burr, trying to reauthorize § 215 as is, will not reauthorize the mass metadata surveillance programs and will not moot this ruling, whether it’s a short or a long-term extension. Instead, in the context of a straight reauthorization, the district court would then award relief to the appellants for their past injury, and order the end of the program as required by the 2nd Circuit ruling.

 

  1. Is it likely that the Supreme Court will overrule the 2nd Circuit?

 

The Supreme Court exists primarily to resolve “circuit splits” – differences in interpretation of federal statutes or the Constitution among the eleven Courts of Appeals.

 

There’s no split yet.

 

Since the 2nd Circuit binds the FISC, there’s no split between courts of equal authority immediately underneath the Supreme Court. There are two lawsuits where rulings are pending that relate to the government’s mass metadata surveillance programs. Of these two, the 9th Circuit is more likely to agree than disagree with the 2nd Circuit, and the DC Circuit, while likely to rule that mass metadata surveillance is constitutional, is unlikely to rule on the question of whether Section 215 authorizes mass metadata surveillance. Noted surveillance apologist Ben Wittes reluctantly makes this point here. So unless the DC Circuit goes beyond its remit, there will be no circuit split that would enable the Supreme Court to intervene.

 

Of course, the government could – and likely will – attempt to get the 2nd Circuit to rehear this case en banc. But the ruling was a unanimous one, and solely on statutory grounds – the court didn’t reach the question of whether mass metadata surveillance conflicted with the Fourth Amendment. It’s therefore very unlikely that the 2nd Circuit will grant such a rehearing.

 

All this means that, if the USA FREEDOM Act does not pass in some form, the 2nd Circuit ruling would until the next Supreme Court session in the fall, and probably till the term after that, be the last word on the legality of the government’s mass metadata surveillance programs. Congress cannot countenance the operation of illegal programs in the interim, in the hope that one day the Supreme Court will accept a writ of certiorari to resolve an as-yet-nonexistent circuit split. To do so would, as I note above, allow the NSA to operate above the law.

So, to sum up, Bob Litt, Senator Burr, and Stewart Baker are wrong. The ruling in ACLU v. Clapper is much more than a “97-page law review article” of “close to zero significance.” It is now, and will be for at least a year, the controlling law relating to mass metadata surveillance, unless Congress chooses explicitly to authorize such programs in the interim. Anyone who advises Congress simply to disregard the ruling is advocating gross disrespect for the law. No member of Congress should kid themselves otherwise.

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