For weeks Senate Republicans led by Majority Leader Mitch McConnell have sought a clean renewal of the Patriot Act authority that authorizes the National Security Agency to spy on the phone records of millions of Americans – the program a federal appeals court declared illegal last Thursday.
In the most significant victory for privacy and civil liberties advocates since NSA whistleblower Edward Snowden revealed the program almost two years ago, the Second U.S. Circuit Court of Appeals ruled that Section 215 of the Patriot Act – which expires at the end of the month – does not permit the bulk collection of Americans’ landline telephone records.
“This decision is a resounding victory for the rule of law,” American Civil Liberties Union attorney Alex Abdo, who argued the case before the court in September, said in a statement.
“For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society.”
The ACLU brought the case, ACLU v. Clapper, against the government shortly after the leaks by Snowden revealed the government was collecting, storing and surveilling en masse the landline telephony metadata of virtually all Americans – including telephone numbers, dialed numbers, call durations and locations.
Director of National Intelligence James Clapper denied the existence of what has since been dubbed the “215 Program” during a congressional hearing months before the Snowden leak.
“The current reform proposals from Congress look anemic in light of the serious issues raised by the Second Circuit,” Anthony D. Romero, executive director of the American Civil Liberties Union, said in a statement. “Congress needs to up its reform game if it’s going to address the court’s concerns.”
Those reforms include The U.S.A. Freedom Act, which principally addresses the 215 Program by reauthorizing Section 215 of the Patriot Act, but with a host of reforms.
Those include moving the storage of records to a third party, requiring the government to get warrants to search for specific data, a reduction in the scope of individuals NSA can surveil and the addition of a privacy and civil liberties advocate to the Foreign Intelligence Surveillance Court, which approves warrants for the intelligence community in secret.
The legislation passed in the House last summer but failed to overcome a cloture vote in the Senate in November – the result of a last-minute campaign against the bill by McConnell and Senate Republicans, many of whom alleged the reforms would open the U.S. up to attack by terrorist groups such as ISIS in the Middle East.
With roughly two weeks of legislative calendar space left on Congress’ docket before the legal underpinning of the 215 Program expires – and with the House preparing for another vote on the Freedom Act next week, which is largely expected to pass – those arguments have grown more vehement in the upper chamber.
Last Thursday’s ruling against the government in NSA v. Clapper couldn’t have come at a worse time for McConnell and Senate Republicans, who have only dug in deeper since the ruling.
“Under Section 215, the NSA cannot listen to the phone calls of Americans at all,” McConnell said in response to the ruling Thursday. “If our intelligence community cannot connect the dots of information, we cannot stop this determined enemy from launching attacks.”
But can McConnell reauthorize a program based on a legal interpretation a federal judiciary just declared unfounded? According to national security lawyer Bradley Moss, associate counsel at the Law Office of Mark Zaid, there’s already precedence for such a move.
“The immediate comparison that comes to mind are the Military Commissions Acts of 2006 and 2009, which were meant as legislative fixes to the legal flaws identified by the Supreme Court in Hamdan v. Rumsfeld and Boumediene v. Bush,” Moss told InsideSources.
Both cases dealt with the detainment of prisoners at the Guantanamo Bay U.S. military base in Cuba after the September 11, 2001 terrorist attacks, and subsequent “War on Terror” under President George W. Bush.
In the midst of the war, the Bush administration maintained the stance that prisoners of war affiliated with terrorist groups such as al Qaeda and the Taliban, not being soldiers of a state, were not subject to the Geneva Conventions governing the treatment of POWs. The administration further stated that such prisoners, who were detained outside U.S. territory, were not eligible for “the privilege of the writ of habeas corpus” under Article One, Section 9 of the U.S. Constitution.
As a result, according to the Bush administration, prisoners captured in the wake of the War on Terror could be subject to a trial by a U.S military commission and held indefinitely at Guantanamo Bay.
Prisoners including Hamdan and Boumediene appealed their convictions and the cases went to the Supreme Court, which struck down the Bush argument as unconstitutional and asserted prisoners at Guantanamo must be afforded habeas corpus and made eligible for trial in federal court.
After the rulings, Congress essentially usurped and overwrote the rulings via the Military Commissions Act of 2006 and 2009, which authorized “trial by military commission for violations of the law of war, and for other purposes” for “enemy combatants,” and prohibited them from invoking habeas corpus.
“The legislation proposed by Majority Leader McConnell would similarly seek to legislatively overrule the Second Circuit’s ruling regarding Section 215,” Moss said.
“Ironically enough, however, it is the reform-minded USA Freedom Act which would likely put the NSA’s metadata program on a stronger statutory footing and unravel the very victory claimed by civil libertarians before the Second Circuit.”
According to Moss, the Freedom Act stands to bolster the 215 Program’s legality while only implementing minor changes to the way the government accesses and searches the same trove of metadata.
“The USA Freedom Act’s reforms (and whether they reform anything depends on who you ask) would provide the legitimacy the Second Circuit believed was lacking in the Government’s interpretation of its Section 215 authority,” Moss said.
“It provides legislative cover to the metadata collection programs with tweaked language meant to mollify the court’s concern about indiscriminate collection of data under an indeterminate ‘relevancy’ standard, while not actually preventing bulk collection so long as it is targeted.”
David Greene, civil liberties director for the Electronic Frontier Foundation – which recently brought its own lawsuit against the NSA – agrees that the post-ruling congressional move on Section 215 isn’t a surprise.
“It would not be unusual at all for Congress to pass legislation in response or
reaction to a court decision,” Greene told InsideSources.
Less surprising is the disapproval McConnell’s earned for his determination to move forward – including from the ACLU itself.
“In the wake of the court’s decision, Senator McConnell’s push to simply reauthorize provisions of the Patriot Act that have been used to conduct mass surveillance is the equivalent of turning a blind eye to government abuse,” legislative counsel for the ACLU Neema Singh Guliani told InsideSources.
“Members of Congress should be pushing for a sunset of Section 215 – not reauthorizing a law that has been utterly misused by the intelligence agencies. The court’s decision strengthens the hands of members of Congress who are pushing for stronger reforms than those currently being considered.”
Others still support the Freedom Act as the most realistic measure to begin reforming overreaching intelligence community practices.
“The USA FREEDOM Act would bring better oversight to surveillance programs and would ban mass records collection – ending the very practice the Second Circuit ruled illegal,” Computer & Communications Industry Association President & CEO Ed Black said in a statement. “CCIA urges Congress to move swiftly to pass the USA FREEDOM Act in response to this court ruling.”