Contrary to yesterday’s post regarding the 11th Circuit Court of Appeals ruling that warrantless access to phone records is not an invasion of privacy; a 3-judge panel from the 2nd Circuit ruled unanimously on Thursday, May 07th that the National Security Agency (NSA) spying program is illegal. Although both programs base their justification on the 1979 precedent-setting Supreme Court decision of Smith v. Maryland, the 2nd Circuit declined to address the constitutionality of the issue, and instead cited the lack of authority in the Patriot Act. Specifically, the court is referring to section 215 of the Patriot Act, the controversial measure that is set to expire on June 1st. Two weeks ago, Senate Majority Leader Mitch McConnell (R-KY) introduced a bill to fast-track a reauthorization of the provision until 2020 to the disdain of most of the House and Senate. McConnell introduced the bill even though widespread bipartisan support was being gathered for the USA Freedom Act, a toned-down NSA program that was geared to be more Constitution friendly, namely the 4th Amendment regarding illegal search and seizure. This ruling changes everything about this debate, and with time running down, the battle between the two bills will likely become a cage match.
Despite the initial shock of the 2nd Circuit’s ruling, it is much more significant in a philosophical sense than it is in practical terms. The rulings itself, kicks the issue back down to Federal District Court, although the government can take the appeals process back up through the system and maybe even ride it to the Supreme Court. Because the NSA spying is governed by a separate judicial body, the Foreign Intelligence Surveillance Court (FISA), the ruling is actually non-binding. Although claiming that the program overstepped the bounds given in section 215, the court did not order it to be immediately shut down. Instead, Judge Gerard E. Lynch wrote in the 97-page opinion, “Allowing the program to remain in place for a few weeks while Congress decides whether and under what conditions it should continue is a lesser intrusion on [challengers’] privacy than they faced at the time this litigation began.” There are two similar NSA cases pending appeals, but the timing of this decision is crucial. Essentially, the court appealed to congress instead of vice-versa, given the time constraints of the section 215 legislation. Judge Lynch appears to be using this ruling to (re)shape the framework of the debate during the provision’s final few weeks, writing:
“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. 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.”
Whether the opinion is intentionally inferring to it or not, the substantial debate in congress is a battle of two bills. The incumbent, The Patriot Act and specifically the expiring section 215, is squaring off against the bipartisan House bill, the USA Freedom Act, which most importantly, does not allow the government to store personal records for more than 18 months. McConnell gave no ground in light of the ruling on Thursday, saying during a heated debate on the Senate floor that the House legislation is “an untested, untried and more cumbersome system,” and that “Section 215 helps us find a needle in the haystack. But under the U.S.A. Freedom Act, there might not be a haystack at all.” Senate Minority Leader, Harry Reid (D-NV), however, used the ruling as an opportunity to push for an immediate vote on the USA Freedom Act, which also has the support of the President. Reid claimed that McConnell is trying to force the Patriot Act through congress even though it has been ruled illegal, and saying that “It would be the height of irresponsibility to extend these illegal spying powers when we could pass bipartisan reform into law instead.” Taking a more measured approach is Senator John Cornyn (R-TX), who said “There have been discussions but no decisions. We know time is running out. This court decision that came down today is obviously an additional factor that we need to take into account.”Since neither bill currently has a filibuster-proof 60-vote majority, it is likely that the two sides will agree to reauthorize section 215 for an additional month in order to reframe the debate.
New York Times – Charlie Savage and Jonathan Weisman
Politico – Alex Byers and Kate Tummarello
Wall Street Journal Law Blog – Ashby Jones