8 July 2013, NYT: Privacy Group to Ask Supreme Court to Stop N.S.A.'s Phone Spying Program
NOV. 18, 2013
Congress and Courts Weigh Restraints on N.S.A. Spying
By ADAM LIPTAK and JEREMY W. PETERS
WASHINGTON -- Congressional critics of the National Security Agency program that collects the telephone records of millions of Americans stepped up their efforts as the Supreme Court on Monday turned away an unusual challenge [1] to the scope of the surveillance.
The intensifying push against the N.S.A. on both the legal and legislative fronts reflected new pressure being put on the extensive surveillance effort in the wake of revelations by the former N.S.A. contractor Edward J. Snowden, pressure that is running into stiff resistance from congressional leaders of both parties as well as the Obama administration.
The Electronic Privacy Information Center filed the challenge [2] directly with the Supreme Court, arguing that the Foreign Intelligence Surveillance 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 justices gave no reason for rejecting the group's petition, but the unusual procedure of bypassing the lower courts probably played a role. Other, more conventional challenges to government surveillance programs are pending.
In urging the justices not to hear the case, the federal government said [3] "the proper way" to mount a challenge "is to file an action in Federal District Court to enjoin the program, as other parties have done."
It cautioned, though, that "the government may assert certain threshold defenses to such a suit." The case is In re Electronic Privacy Information Center, No. 13-58.
After the recent revelations about widespread government surveillance, civil liberties groups have filed fresh challenges in federal trial courts, saying they can now show that they have standing.
Members of both parties are making a push for laws that would rein in N.S.A. data collection programs and bring more transparency to intelligence gathering. Those seeking to impose new requirements on the N.S.A. hope to take advantage of a small window of opportunity and attach their provisions onto an annual Pentagon policy measure now headed for Senate consideration.
"When you have a train that is sure to reach the station, you want to add your car to that train," said Senator Richard Blumenthal, Democrat of Connecticut. "Even if it means a battle."
By raising new questions about the operations of these surveillance programs -- whose disclosure by Mr. Snowden created one of the more disruptive episodes in Barack Obama's presidency -- Congress seems set to provoke yet another uncomfortable public discussion for a White House struggling to overcome severe problems with its health law.
Leaders of both parties in Congress are hardly eager to see the issue come up again. In the Senate, Harry Reid of Nevada, the majority leader, is wary of any measure that the White House thinks is harmful to national security. He and other Senate leaders are considering erecting procedural barriers to amendments to the Pentagon legislation. The leadership resistance limits chances for quick success in the Senate.
In the House, Speaker John A. Boehner has said he believes dealing with N.S.A. questions in the short time left this year would rush a process that should be longer and more deliberative.
But lawmakers like Ron Wyden, Democrat of Oregon and one of the Senate's strongest critics of mass surveillance, and Senator Rand Paul, Republican of Kentucky, who has tried to bring greater attention to national security practices he argues are unchecked, see no reason to wait.
"What I'm going to zero in on," Mr. Wyden said in an interview, "is much of what the intelligence leadership in the past has been misleading about, has shrouded in incomprehensible intelligence-speak or has just been flat-out wrong."
He added that he thought the timing with the pending defense bill was ideal. "I think there's an opportunity to work with senators of varying different views to set the record straight about the government's surveillance authority and jump-start the broader debate about intelligence reform," he said.
The amendment Mr. Wyden has been circulating in recent days to colleagues would create a battery of new disclosure requirements for the intelligence agencies, including public reports on how often they have conducted mass digital sweeps that enable them to track cellphones, and on how many times they have violated their own privacy rules and safeguards.
Mr. Wyden drafted his amendment to appeal to both ends of the spectrum on surveillance. It purposely contains nothing about banning N.S.A. data collection methods so it does not alienate those who are generally supportive of current intelligence practices. He declined to say how many senators had signed on, but did say a number of influential centrists who hold very different views on N.S.A. policies have expressed interest.
"Certainly the concept of more accountability and transparency has got a lot of senators' interest," he added.
The larger and more divisive fight over banning certain N.S.A. programs, which Mr. Wyden and other members of Congress have been leading, would wait until next year.
Questions about the N.S.A. are especially difficult for the Democratic Party, which has a core group of liberals who oppose giving the government the blanket authority to collect vast quantities of data on its citizens. The party also has members, like Mr. Reid and Senator Dianne Feinstein of California, who are inclined to be deferential to the president and intelligence officials.
Senator Carl Levin, Democrat of Michigan and the gatekeeper of the amendments that will eventually find their way onto the Pentagon bill, has said he prefers that N.S.A. issues be kept out of it.
"It's really a separate issue and should not be on the defense bill," he said. "It's probably the only way we can get a defense bill done if we keep nondefense-related amendments off the bill."
This year, more than half of the House Democrats defied Mr. Obama and their leader, Representative Nancy Pelosi of California, and voted to block the N.S.A. from collecting huge troves of phone records. Not quite half of the House Republicans also voted for the measure, but it ultimately failed in a close vote.
But there are signs this time could be different. Asked last week if she thought it was time for Congress to revisit questions of government surveillance, Ms. Pelosi strongly pushed back on the notion that she was in favor of broad government authority, and said lawmakers should take up the issue.
"I have been a critic of this program for a very long time," she said, adding that while she still did not support a ban on bulk data collection, she was open to other changes. "I think the discussion should take place."
[2] http://epic.org/EPIC-FISC-Mandamus-Petition.pdf
[3] https://epic.org/privacy/nsa/in-re-epic/13-58-SG-Brief.pdf