A federal appeals court has, for now, stopped a challenge to the National Security Agency’s bulk metadata collection program, giving enormous deference to US spies, and ruling that the plaintiffs couldn’t prove they were actually under surveillance.
The 2-1 decision came down on Friday from the Circuit Court of Appeals in Washington, sending a challenge from conservative activist Larry Klayman back to a lower district court on grounds that he didn’t have standing to challenge the NSA’s phone records dragnet.
The plaintiff relied on documents released by NSA whistleblower Edward Snowden, including a Foreign Intelligence Surveillance Court order requesting all the call records from Verizon Business customers, to argue that the program violated the Fourth Amendment.
In December 2013, a district judge, Richard Leon, ruled that Klayman’s case was valid and that the program likely violated the Constitution.
Writing for the majority Friday, Judge Stephen Williams claimed evidence that the NSA was collecting call records detailing activities of Verizon Business customers did not necessarily mean that they were also monitoring Verizon Wireless customers like Klayman.
Although Williams acknowledged that the effectiveness of the program “expands with its coverage,” he deferred to claims made by the government that it has “never collected ‘all, or even virtually all’ called records.”
“In fact,” Judge Williams claims, “there are various competing interests that may constrain the government’s pursuit of effective surveillance.” He alleged that the plaintiffs fail to account for “legal constraints, technical challenges, budget considerations,” as potential reasons why the NSA’s dragnet may not have touched Klayman’s records.
“It is possible that such factors have operated to hamper the breadth of the NSA’s collection,” Williams writes.
While serving as NSA chief, Gen. Keith Alexander reportedly had the motto, “Collect it all.”
A former senior intelligence official described to the Washington Post Alexander’s rationale.
“Rather than look for a single needle in the haystack, his approach was, ‘Let’s collect the whole haystack,’ ” the official said. “Collect it all, tag it, store it…And whatever it is you want, you go searching for it.”
In June, Members of Congress passed reforms to the NSA’s call records program carried out under Section 215 of the USA Patriot Act. The legislation will essentially move the initiative out from under the direct watch of US intelligence services. The legislative maneuvering didn’t affect the court’s proceedings, however, since the telephony metadata collection is slated to continue until November.
“Plaintiffs and the government stand in the same positions that they did before June 1, 2015,” the court stated.
One obstacle to determining whether the government was collecting Klayman’s, and virtually every other Americans’ phone records, is the secrecy surrounding the program.
Judge Williams wasn’t sympathetic to those concerns either, arguing that the “government’s silence regarding the scope of bulk collection is a feature of the program, not a bug.”
The ruling doesn’t end the challenge to the NSA program full stop. Judge Williams stated that it’s possible upon remanding the case back to the district court, that the plaintiffs “will be able to collect evidence that would establish standing.”
His colleague on the bench, Judge Janice Rogers Brown, acknowledged in her ruling, however, that such discovery was unlikely.
“It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case,” she wrote. “Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information.”
Investigative Journalist Marcy Wheeler noted that the government may have already released the proof Klayman needs to prove his standing—perhaps inadvertently. She referred to Department of Justice Inspector General findings that showed a 2010 phone dragnet order did included Verizon Wireless customers.
Friday’s ruling concerns only one sliver of the NSA’s surveillance activities—including bulk collection—which is carried out under a number of different authorities outside the USA Patriot Act, including the Foreign Intelligence Surveillance Act (FISA) and Executive Order 12333.
A third judge on the panel, David Sentelle, dissented in the case, arguing that rather than remanding the case back to the lower court, it should be tossed out altogether.
All three judges on the panel were appointed by Republican presidents.
