16 December 2005, NYT: Bush Lets U.S. Spy on Callers Without Courts
JULY 7, 2013
Privacy Group to Ask Supreme Court to Stop N.S.A.'s Phone Spying Program
By JAMES RISEN
WASHINGTON -- A privacy rights group plans to file an emergency petition with the Supreme Court on Monday asking it to stop the National Security Agency's domestic surveillance program that collects the telephone records of millions of Americans.
The group, the Electronic Privacy Information Center, says it is taking the extraordinary legal step of going directly to the Supreme Court because the sweeping collection of the phone records of American citizens has created "exceptional circumstances" that only the nation's highest court can address.
The group, based in Washington, also said it was taking its case to the Supreme Court because it could not challenge the legality of the N.S.A. program at the secret court that approved it, the Foreign Intelligence Surveillance Court, known as the FISA court, and because lower federal courts did not have the authority to review the secret court's orders.
In its petition, the group said the FISA court had "exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation."
The suit is the latest in a series of legal challenges to the N.S.A.'s domestic spying operations that have been filed over the past month after disclosures by a former N.S.A. contractor, Edward J. Snowden. Based on a document leaked by Mr. Snowden, The Guardian revealed early last month that the FISA court had issued an order in April directing Verizon Business Network Services to turn over all of the telephone records for its customers to the N.S.A. The secret court order [1] was also published by The Guardian.
Within days of the disclosure of the court order, the American Civil Liberties Union filed suit in federal court in New York. Separately, Larry Klayman, a conservative lawyer who runs a group called Freedom Watch, filed a class-action lawsuit in federal court in Washington on behalf of Verizon customers.
Marc Rotenberg, the executive director of the Electronic Privacy Information Center, said his group's lawsuit would be the first to directly challenge the legal authority of the FISA court to approve the phone records' collection under the Patriot Act.
Alan Butler, a lawyer for the group, said the judge "lacked the authority to require production of all domestic call detail records." He noted that the Patriot Act provision cited by the FISA court required that the business records produced be "relevant" to an authorized national security investigation. "It is simply implausible that all call detail records are relevant," Mr. Butler said.
The new challenges come after the failure of a legal campaign against the N.S.A.'s domestic spying operations during the administration of President George W. Bush. A series of lawsuits were brought against an N.S.A. program of wiretapping without warrants soon after the existence of the program was revealed by The New York Times in December 2005.
Those lawsuits were against the telecommunications companies that cooperated with the N.S.A. program, but Congress later gave the companies retroactive legal immunity when it overhauled the nation's national security wiretapping law in 2008. Those lawsuits also suffered in federal courts because it was difficult for the plaintiffs to prove that they had actually been spied upon by the N.S.A., since the domestic spying operations were secret and the courts refused to force the government to release any documents to reveal the targets of the surveillance.
But the new lawsuits benefit from the publication of the secret court order concerning Verizon, providing evidence that the records of Verizon customers have been collected. The American Civil Liberties Union, in its lawsuit, argues that it has legal standing to bring its case because the group is a Verizon customer.
[1] http://www.guardian.co.uk/world/interactive/2013/jun/06/verizon-telephone-data-court-order