Last week, the a panel of the Second Circuit Court of Appeals ruled that the National Security Agency’s bulk phone metadata collection program is not authorized by Section 215 of the USA PATRIOT Act. The ruling is a setback for congressional leaders who are trying to reauthorize the provision before it expires at the end of the month.
A lower court deferred to the Obama administration, upholding the legal basis for the domestic surveillance program, but the three-judge appellant panel reversed the decision, setting the stage for the case to go before the Supreme Court.
“This case serves as an example of the increasing complexity of balancing the paramount interest in protecting the security of our nation – a job in which, as the President has stated, ‘actions are second‐guessed, success is unreported, and failure can be catastrophic,’ with the privacy interests of its citizens in a world where surveillance capabilities are vast and where it is difficult if not impossible to avoid exposing a wealth of information about oneself to those surveillance mechanisms,” wrote Judge Gerard Lynch for the panel. “Reconciling the clash of these values requires productive contribution from all three branches of government, each of which is uniquely suited to the task in its own way.”
“[W]e conclude that the district court erred in ruling that Section 215 authorizes the telephone metadata collection program,” he continued, “and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates Section 215.”
As one might expect, the decision was hailed by privacy groups – including the American Civil Liberties Union, which filed the lawsuit to end the NSA’s domestic surveillance program. Hawkish Republicans were quick to condemn the decision, invoking the September 11 attacks and the rise of the Islamic State to promote fear in the minds of Americans.
During an appearance on CNN’s State of the Union, former House Intelligence Committee Chairman Mike Rogers (R-Mich.) complained “[t]he more we make this more difficult, the more likely we’re going to have [bad] event.”
Rogers was one of the most vocal defenders of the NSA’s domestic surveillance efforts when he served on Capitol Hill. He’s long insisted that the program is necessary to prevent attacks inside the homeland, although government panels have concluded that it didn’t play a role in preventing terrorist attacks
Although Rogers is no longer roaming the halls of Congress as an elected official, others, such as Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.), are pushing for reauthorization of Section 215, using fear to advance their unconstitutional cause.
The House of Representatives will likely vote on the USA FREEDOM Act on Wednesday. This bill, according to Rep. Justin Amash (R-Mich.), is flawed because it actually authorizes the bulk collection of innocent Americans’ phone metadata.
Absent passage of worthwhile reforms, there could be enough votes in Congress to deny reauthorization of Section 215 before the provision expires, particularly in the Senate where there may be the votes to filibuster any extension. Still, that may not be enough. Some have speculated that the administration could continue the program without Section 215.
It’ll be interesting to see how it plays out, but no matter how it ends, we’ll find out soon who in Congress actually believes the rhetoric they espouse on the campaign trail and who is willing to cast aside privacy protections of the Constitution to give the federal government almost unlimited power to spy on Americans.