Appeals court clears hurdle for NSA

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A federal appeals court Tuesday eliminated a possible roadblock for the National Security Agency (NSA), delaying a judge’s order to halt the agency's controversial data collection.

The order from the U.S. Court of Appeals for the D.C. Circuit sets the NSA on a path to wind down its bulk gathering of Americans’ phone records later this month.

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On Monday, Judge Richard Leon of the U.S. District Court for D.C. had sought to end the program immediately, before a Nov. 29 deadline. Leon’s order would have ended the NSA’s collection of records about one California lawyer, though doing that might have required taking the entire system offline, he acknowledged.

Late Tuesday afternoon, however, the appeals court stepped in and issued a stay on that order, preventing it from taking effect. The move from the appeals court was widely expected, given that Leon's order would merely kill the program three weeks early.

“The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay,” it said in a brief order, “and should not be construed in any way as a ruling on the merits of that motion.”

Plaintiffs suing the Obama administration, led by conservative legal activist Larry Klayman, will have until noon Friday to submit arguments on whether the program should be shut down immediately. The government has until the following Monday. 

Few watchers expect the court to interfere with the NSA’s own schedule, which will take the phone records program offline Nov. 29.

Under the current program, the spy agency collects metadata records about millions of Americans’ phone calls, which include the numbers involved in a call, when the call occurred and how long it lasted. The records do not include content about people’s conversations.

This summer, Congress passed legislation ending the current system and forcing the NSA to move to a new process in which it requests a narrow set of records from individual phone companies.

On Monday, the agency told lawmakers on Capitol Hill that it has “successfully developed a technical architecture to support the new program” and that testing is “underway.”

In his Monday order, Leon said that the NSA should not wait until the new system was up and running, since “even one day” of the current program poses a threat to the Constitution.