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Appeals Court Strikes Down NSA Bulk Phone Data Collection

A federal appeals court ruled Thursday that the National Security Agency’s bulk telephone data collection program exceeds what Congress authorized in Section 215 of the Patriot Act.

The ruling brought forth renewed calls from members of Congress to revamp the program prior to a June 1 expiration of Section 215, and roiled an ongoing debate over the agency’s surveillance powers. Minority Leader Harry Reid, D-Nev., called for an immediate vote on an overhaul of NSA practices – but Majority Leader Mitch McConnell, R-Ky., defended the agency and said “they’re not running rogue out there.”

The U.S. Court of Appeals for the 2nd Circuit said in its 97-page opinion that “Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware.”

The decision revives an American Civil Liberties Union lawsuit challenging the once-secret domestic spying program—made public through disclosures from Edward Snowden in 2013—on both statutory and constitutional grounds. But the court makes clear that it is not calling the program unconstitutional.

“The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary,” the appeals court states.

Attorney General Loretta Lynch, asked about the ruling during testimony on Capitol Hill, said the Justice Department is reviewing whether to appeal, and has worked with Congress to keep program because it expires in June. “Section 215 has been a vital tool” in the DOJ’s arsenal to combat terrorism, Lynch told lawmakers.

But Democratic Sen. Patrick J. Leahy of Vermont and Republican Sen. Mike Lee of Utah, co-sponsors of legislation (S 1123) that would rein in the NSA, said in a statement that the bulk collection of records is “unnecessary and ineffective,” and now has been found illegal.

“Congress should not reauthorize a bulk collection program that the court has found to violate the law,” they said. “We will not consent to any extension of this program.” They urged the Senate to take up their bill.

The bipartisan backers of the House bill (HR 2048), approved by the House Judiciary Committee on April 30, also pushed for fast action. “Today’s federal appeals court ruling confirms what we’ve been saying all along: bulk collection of data is not authorized under the law and is not accepted by the American people. It also reaffirms that a straight reauthorization of the bulk collection program is not a choice for Congress,” said House Judiciary Chairman Robert W. Goodlatte, R-Va.; ranking Democrat John Conyers Jr. of Michigan; Republican Jim Sensenbrenner of Wisconsin; and Democrat Jerrold Nadler of New York, in a statement.

Rep. Adam B. Schiff, D-Calif., said that the opinion “shows that a straight re-authorization is not only politically untenable but on shaky legal ground as well.”

Reid said in a statement that “it would be the height of irresponsibility to extend these illegal spying powers when we could pass bipartisan reform into law instead. I join the bipartisan group of senators opposed to any extension of these spying powers and will use the tools at my disposal to stop any attempt to extend these powers for any length of time without reforming them.”

McConnell, though, was highly critical of the Leahy-Lee bill, known as the USA Freedom Act. “Not only have these tools kept us safe, there has not been a single incidence — not one — of intentional abuse of them,” McConnell said. “The NSA is overseen by the executive, legislative and judicial branches of our government.”

He said that the expiring provisions of the law are “ideally suited for the terrorist threat we face in 2015.  . . .  Section 215 helps us find the needle in a haystack. But under the USA Freedom Act, there may not be a haystack to look through at all.”

The 2nd Circuit is the second court to find the program unlawful in some way, and the highest-level court to do so. A district judge ruled the program unconstitutional in 2013, in a case that is under review by the federal appeals court in Washington.

The court spent much of Thursday’s order exploring the legislative history of the law, the statements of lawmakers at the time and the language ultimately passed by Congress.

The NSA’s concept of “relevance” of phone data collection is “unprecedented and unwarranted,” the court concluded.

The government “takes the position that the metadata collected—a vast amount of which does not contain directly ‘relevant’ information, as the government concedes—are nevertheless ‘relevant’ because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant,” the court states.

Such an expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans, the court said.

“Perhaps such a contraction is required by national security needs in the face of the dangers of contemporary domestic and international terrorism. But we would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language,” the court stated.

There is no such evidence of such a debate in the legislative history of Section 215, they concluded.

Sen. Rand Paul, R-Ky., another critic of the program, applauded the ruling. “This is a monumental decision for all lovers of liberty,” Paul, also a candidate for the GOP presidential nomination, said in a statement. “I commend the federal courts for upholding our Constitution and protecting our Fourth Amendment rights. While this is a step in the right direction, it is now up to the Supreme Court to strike down the NSA’s illegal spying program.”

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