Spy court hears first anti-NSA argument

For the first time, the federal court overseeing the country’s surveillance programs heard a formal argument this month that the National Security Agency’s bulk collection of people’s phone records is illegal.

In a friend-of-the-court brief filed early in April and declassified on Wednesday, the Center for National Security Studies said that the surveillance program is not authorized under current law.

“Congress has never authorized the telephone metadata program,” the think tank told the Foreign Intelligence Surveillance (FISA) Court.


“When the government acts in an area of questionable constitutionality, Congress cannot be deemed to have authorized that action by mere implication or acquiescence,” it added, “Rather, Congress must explicitly indicate that it intends to alter the rights and limitations normally afforded by the law.”

Yet with regards to the controversial NSA operation, Congress never “made such an explicit statement.”

According to Kate Martin, the director of the Center for National Security Studies, the brief is the first formal argument the FISA Court has heard outlining how the bulk data collection does not comply with the law.

“The court hasn’t heard the opposing view on that before issuing these orders, on that question,” she said.

The controversial NSA program, revealed in documents from former contractor Edward Snowden, collects bulk records about people’s phone calls so that spies can connect the dots between suspected terrorists. The “metadata” effort collects phone numbers people dial, the length of their calls and the frequency of their calls, but not the content of the actual conversations.

The spy court has to approve the program every 90 days, but it operates in secret and never issues a formal opinion explaining its rationale for approving the collection until after Snowden’s leaks. Before that, it just issued approval orders.

The court also hears just one side of the case, which critics say gives it a lopsided view of the actions it is asked to approve.

In December, a federal judge in Washington said that the program is probably unconstitutional, and in January, the government Privacy and Civil Liberties Oversight Board said the data collection “lacks a viable legal foundation.”

President Obama has ordered a series of reforms to the program and, last month, called for an overhaul to totally end the government’s collection of the phone records. Instead of the NSA collecting and holding the data, he said, they should have to get it from private phone companies, which already keep customer data for billing and regulatory reasons.

The plan would need legislative approval, and, so far, there has been little momentum to move forward in Congress. There are also competing visions that seek both broader and more limited reforms, which put into the jeopardy the idea that Congress can reform the program before it comes up for court renewal on June 20.

If it does, Martin said she hopes the brief will be instructive.

“If the government asks for a renewal of the order, we hope the FISA Court will read our brief before granting renewal of the order," she said, "which I think would be the first time that they’ve had in front of them the counterargument that this not legal under the statute.”