By Cliff Montgomery – Sept. 11th, 2014
Last week, the National Security Agency’s (NSA) massive phone data collection program began to receive its first test in a federal appeals court. It seems the judges didn’t like many of the answers it heard from Justice Department lawyers, who labored to defend the program.
The appeal was brought by the American Civil Liberties Union (ACLU), which believes the NSA’s data collection dragnet is unconstitutional. Regardless of the eventual ruling, the case is almost sure to reach the Supreme Court.
The controversial NSA dragnet was first revealed last year by whistle-blower Edward Snowden and The Guardian.
Last Tuesday, the U.S. Second Circuit Court of Appeals asked Stuart Delery, Assistant Attorney General for the Justice Department’s Civil Division, a series of pointed questions regarding the massive breadth and scope of the call-records collection.
The oral argument session in New York City stretched on for about an hour and 45 minutes. The three-judge panel often seemed suspicious of the Justice Department’s assertions.
The judges were especially concerned that the Obama Administration’s rationale for the NSA’s huge phone data surveillance program – that it is an essential means of discovering information on a possible terrorist plot – may also be used to justify a mass dragnet of any other type of business records, such as credit card and bank information.
After all, what’s “so uniquely valuable about phone records,” mused Judge Gerard Lynch.
“The same third-party argument that you’re making as a matter of constitutional law and the same relevance argument that you’re making under the statute apply to banking records and credit card records, don’t they?” bluntly asked Judge Lynch.
“Isn’t it at least as relevant to you whether somebody that you have some reasonable suspicion is engaged in terrorist connections used his credit card last week to buy a ton of fertilizer as it is to find out whether he called his gym?” he added.
District Court Judge Vernon Broderick voiced similar concerns.
“Couldn’t then the government aggregate everybody’s bank records and apply the same sort of query methodology to get at the same sort of linkages?” queried Broderick, who was appointed by President Obama.
Delery acknowledged that such a rationale might hold true, but claimed it may not always be a valid method of action.
“Other types of data, even if very valuable for law enforcement and used routinely, may not have the same benefits from aggregation ex ante and querying based on standardized formats. The answer here would not necessarily be the same. [But] It’s a question,” Delery offered.
The attorney’s artful distinctions failed to impress Judge Lynch.
“I just don’t understand an argument about what’s so different about telephone records that makes them so valuable,” the judge retorted.
Nor did the judges seem persuaded by Delery’s insinuation that the mass collection of phone data has the tacit support of the American people, since Congress has twice renewed the statutory provision which serves as the legal basis for the NSA surveillance program.
“I thought the ratification notion is you’re dealing with something that’s public, and that by ratifying it again and again you’re somehow reflecting the public will because they know about it,” replied Judge Robert Sack, who was appointed by President Clinton.
“[But] I wonder how valid that ratification argument is when you’re dealing with…what is essentially secret law,” continued Judge Sack.
The judges at times also seemed somewhat flustered with the Justice Department’s tight-lipped descriptions of the secretive NSA program.
“You seem to rely on declassified material,” Judge Sack said to Delery. “What else aren’t you telling us?”
