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The legal attack on the NSA

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Writer   |   Nov. 24, 2013 at 3:30 AM   |   Comments

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WASHINGTON, Nov. 24 (UPI) -- A challenge to the National Security Agency's massive domestic snooping program whizzed by in the U.S. Supreme Court last week. If you blinked, you missed it.

But though that challenge is moribund, there are more on the horizon.

The failed challenge brought by Washington's Electronic Privacy Information Center focused on a special judges' panel set up under the Foreign Intelligence Surveillance Act, or FISA, and its order to Verizon to produce data for the NSA. The Supreme Court rejected the challenge in a one-line order without comment.

EPIC wanted the Supreme Court to decide whether "the Foreign Intelligence Surveillance Court exceeded its narrow statutory authority in authorizing foreign intelligence surveillance, under [the federal law] when it ordered Verizon to disclose records to the National Security Agency for all telephone communications wholly within the United States, including local telephone calls."

It was the first NSA challenge to reach the Supreme Court since former NSA contractor Edward Snowden fled the country with a bag of the agency's secrets, eventually finding temporary asylum in Russia, SCOTUSBLOG.com reported.

Snowden leaked a veritable blizzard of NSA secrets about domestic and foreign spying. The newspaper most connected with Snowden's leaks, Britain's The Guardian, reported early this month the Snowden documents also show the "German, French, Spanish and Swedish intelligence services have all developed methods of mass surveillance of Internet and phone traffic over the past five years in close partnership with Britain's [Government Communications Headquarters] eavesdropping agency."

With the international reputation of the NSA and other surveillance agencies in smoking ruins, legal challenges in the United States have advanced. A petition from EPIC asked for a "writ of mandamus or prohibition" from the Supreme Court to the FISA court -- an order from on high to change your ways.

"In this case, the Foreign Intelligence Surveillance Court [the FISC] exceeded its statutory jurisdiction and as a direct consequence created the exceptional circumstances that warrant mandamus review," EPIC told the Supreme Court. "The ongoing collection of the domestic telephone records of millions of Americans by the NSA, untethered to any particular investigation, is beyond the authority granted by Congress to the FISC under the [Foreign Intelligence Surveillance Act]. Because of the structure of the FISA and the FISC, EPIC can only obtain relief from this [Supreme] Court."

In opposing Supreme Court involvement, the Obama administration told the justices in a brief they had no jurisdiction.

"Congress established that only specified parties -- the government or the recipient of an order -- may seek review in this [Supreme] Court of a FISC decision" under federal law, the administration said. EPIC, even if it represented organizations with telecommunication privacy concerns, had no business in the case.

"Thus, for example, if the party ordered to produce business records [Verizon] under [the pertinent federal law] elected to challenge a FISC decision affirming or modifying the order, it could appeal to the FISA Court of Review and later seek ... review in this [Supreme] Court."

EPIC, "which was not the recipient of the order, is not permitted by statute to seek such review."

If that argument sounds familiar, it's because it harks back to the Supreme Court ruling in Clapper vs. Amnesty International in February.

In that case, the justices ruled 5-4 along its conservative-liberal fault line that a coalition led by the American Civil Liberties Union did not have standing to challenge the government interception of foreign communications.

Justice Anthony Kennedy joined the four-member conservative bloc to form a majority.

At issue was the FISA Amendments Act, re-enacted by Congress late last year. The Foreign Intelligence Surveillance Act amendments authorize the FISC to allow purported surveillance on communications between U.S. citizens and foreigners.

The act and the government put anyone trying to challenge FAA in a catch-22 bind.

You have to show you were "injured" to have "standing" to challenge a government action.

The Bush administration and now the Obama Justice Department have argued individuals and organizations must be able to show they were monitored by the surveillance program to have standing and challenge it in court.

But the program's target list is secret. The U.S. government won't tell potential targets whether they have been monitored. Therefore, the government contends, no one has standing.

The 1978 Foreign Intelligence Surveillance Act was adopted after the Watergate scandal. Under the special court's supervision, it lets the U.S. government secretly eavesdrop on U.S. citizens and others in the United States in intelligence investigations, especially when someone communicates with a foreign agent. It was originally passed to allow the government to collect foreign intelligence information involving communications with "agents of foreign powers."

The 2001 Patriot Act, enacted after the Sept. 11, 2001, terror attacks, expanded FISA to let the FBI get the personal records of targets from U.S. libraries and Internet service providers.

The real change came in 2008. The FISA Amendments Act was enacted that year and extended its provisions for five more years. The act was re-enacted late last year for five years.

Now the law allows the government to eavesdrop on U.S. electronic communications -- phone calls, emails and other forms -- without a warrant in the United States as long as one end of the communication is outside the United States.

The ACLU filed suit challenging the 2008 FISA Amendments Act in July of that year on behalf of a broad coalition of plaintiffs who routinely contact people overseas. The government defendants are now headed by James R. Clapper Jr., as director of national intelligence, Keith B. Alexander, director of the National Security Agency and chief of the Central Security Service, and U.S. Attorney General Eric H. Holder Jr.

A federal judge dismissed the initial case, saying the ACLU plaintiffs didn't have standing. However, a three-judge federal appeals court panel in New York ruled the other way when it handled the case in March 2011, saying the coalition did have standing.

But Justice Samuel Alito, writing for the Supreme Court majority in February, reversed the appeals court, saying the coalition did not have constitutional standing because the threat of injury was speculative.

Justice Stephen Breyer and the other three liberals dissented.

"The plaintiffs' standing depends upon the likelihood that the government, acting under the authority of [the act] will harm them by intercepting at least some of their private, foreign, telephone or email conversations," Breyer wrote. "In my view, this harm is not 'speculative.' Indeed it is as likely to take place as are most future events that common sense inference and ordinary knowledge of human nature tell us will happen."

Meanwhile, despite the failure of the EPIC challenge, legal attacks on the NSA and its "metadata" collection -- as opposed to snooping on the contents of a particular communication -- are ongoing.

Larry Klayman, founder of Judicial Watch, was scheduled to appear before U.S. District Judge Richard Leon in Washington Monday to ask for an injunction against the NSA, keeping it "from continuing to violate the constitutional rights of Americans with its PRISM program," the group said on its website. "Specifically, the NSA has violated the privacy rights of over 300 million citizens by accessing their cellphone, Internet and social media communications without regard to their having any connection to terrorists or terrorism."

Klayman represents Judicial Watch and the father of a SEAL killed by the Taliban in 2011. Klayman contends the NSA has been accessing the father's phone records and Internet use.

If Klayman can convince the judge "the NSA and the government will be preliminarily enjoined from continuing to use its unlawful, overly broad application of its PRISM program to continue indiscriminately spying on American citizens who have no connection to terrorists," Judicial Watch said.

PRISM is a 7-year-old NSA program in which the agency demands Internet data from carriers such as Google.

Last Friday, the ACLU and its lawyers went before U.S. District Judge William Pauley in New York City to challenge NSA surveillance on mainly privacy concerns.

"Section 215, perhaps the most controversial of the Patriot Act provisions that Congress reauthorized in 2011, is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person's privacy," the ACLU said on its website. "Recent disclosures have shown that the government is using Section 215 to collect records of the calls made by every single American every single day, without any suspicion of wrongdoing."

The ACLU said it "has filed a lawsuit challenging the constitutionality of this bulk collection under Section 215, and a motion with the Foreign Intelligence Surveillance Court [FISC] seeking the release of its secret opinions authorizing the dragnet surveillance of Americans' phone calls under this provision."

Not everyone sees the NSA or PRISM as a bad thing.

A respected voice on the right, John Arquilla, writing in Foreign Policy magazine, said in June that giving up "a bit of privacy" might be a price the nation has to pay in the fight against terror.

Arquilla, besides authoring numerous pieces on foreign policy, is a former adviser to then U.S. Secretary of Defense Donald Rumsfeld.

"PRISM has just provided a glimpse through the looking glass," he said. "Revelations about this monitoring system suggest that living in and moving through the world, even for the most private among us, can be observed closely and for protracted periods by the cold, shy minds of the intelligence community. The reason for this sustained, widespread scrutiny is that, in the long fight against terrorist networks, this is one of the ways in which their cells can sometimes be caught while communicating, their plans disrupted, and, on occasion, their locations determined."

He also exhibited more trust in the spymasters than most critics.

"The price of the increment of security so provided is the loss of a bit of privacy, despite best efforts of intelligence overseers to make sure that the focus is on 'metadata' like the time, date and originating and terminating points of communications -- rather than on specific content. The belief, and the hope, of both the operators of the system and their supervisors -- including watchdogs maintaining oversight from their perches in Congress -- is that some loss of individual privacy will make for significant gains in national security."

He added: "As an observer and sometime participant in efforts to ferret out the intentions and locations of the terrorists over more than a decade, I believe that the benefits of this endeavor have clearly outweighed the costs and risks."

Arquilla concluded "big data approaches like PRISM and its forebears, have been and remain essential elements in the unrelenting and increasingly urgent effort to find the hidden."

Noting that all the congressional intelligence committees and subcommittees have been briefed on the NSA programs, and that they are overseen by the special court, President Obama said in July, "These are programs that have been authorized by broad, bipartisan majorities repeatedly since 2006. ... It's important to understand that your duly elected representatives have been consistently informed on exactly what we're doing."

Obama told reporters: "Nobody is listening to your telephone calls. That's not what this program's about. ... What the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people's names, and they're not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If ... the intelligence community then actually wants to listen to a phone call, they've got to go back to a federal judge, just like they would in a criminal investigation. So I want to be very clear ... nobody's listening to the content of people's phone calls."

But with so many revelations flowing from defector Snowden's documents, Obama's reassurances may be just a small voice in the whirlwind.

© 2013 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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