Administration looks to dodge Supreme Court challenge to NSA program

The Justice Department urged the Supreme Court Monday to throw out a legal challenge to the National Security Agency program that collects records on all U.S. phone calls.

The Electronic Privacy Information Center (EPIC) filed a petition directly to the Supreme Court in July, claiming that the Foreign Intelligence Surveillance Court overstepped its authority when it granted the NSA permission to collect the phone records in bulk.

The program — the most controversial revelation from the leaks by former NSA contractor Edward Snowden — collects phone numbers, call times and call durations, but not the contents of conversations, according to the NSA.

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Other civil liberties groups have sued to end the NSA program, but those cases were filed in federal district court. EPIC is the only group to go directly to the Supreme Court.

In its petition, EPIC noted that the Patriot Act only authorizes the NSA to collect business records that are "relevant" to a terrorism investigation. By allowing the NSA to collect records on millions of Americans without any ties to terrorism, the court acted outside of its own jurisdiction, the privacy group argued.

The group asked the Supreme Court to order the surveillance court to rein in the program or to hear arguments on whether the program is legal.

But in its response, the Justice Department argued that the Supreme Court lacks the jurisdiction to consider EPIC's challenge.

The government said that issuing a command to a lower court — known as a "writ of mandamus" — would be a "drastic and extraordinary" step. The Justice Department said that EPIC should instead file its lawsuit in federal court like the American Civil Liberties Union and the Electronic Frontier Foundation already have.  

"That is the ordinary means to challenge assertedly unlawful government action, and petitioner has identified no special circumstances here that require its statutory challenge to begin in this Court," the Justice Department wrote.