Federal judges express skepticism at ACLU argument that agency should not collect phone data during ‘transition’ period under new USA Freedom Act

Judges who issued the harshest rebuke to the National Security Agency have expressed skepticism at a civil libertarian attempt to stop the twilight phase of US bulk phone records surveillance, one of two challenges to the NSA in federal courtrooms.



Alex Abdo of the American Civil Liberties Union argued on Wednesday before a three-judge panel of a federal appeals court in New York that the NSA should not be allowed to collect Americans’ phone data in bulk during a “transition” period seemingly allowed under a new law that bans the controversial surveillance.

The transitionary period for the bulk NSA collection under the new USA Freedom Act still relies on the same statutory authority as before, Abdo noted – the provision of the 2001 Patriot Act that the same judges on the second circuit court of appeals in Manhattan said in May did not in fact bless the NSA program.

“The harm we’re suffering has no expiration date,” Abdo argued, contending that the continued surveillance, which expires on 28 November under the new surveillance regime Congress passed in June, has a chilling effect on the civil liberties group’s work.

But three judges on the second circuit court of appeals signaled a reluctance to intercede in the NSA’s ongoing surveillance, which is ostensibly designed to smooth a pathway toward letting the NSA and other federal agencies obtain vast amounts of US call records from telecoms pursuant to a judicial order.

“One would think you’re on the losing end of a civil rights catastrophe, but you’ve made tremendous progress on your point of view,” said Judge Robert D Sack, who referenced a famous Vietnam-era quote to ask if the injunction would be a moot point after November: “Why don’t you declare victory and withdraw?”

The judges occasionally appeared perplexed by Abdo’s argument that congressional intent in the new surveillance regime was murky – some legislators voted to end bulk NSA surveillance, while others sought to preserve other government powers set to expire – and the envisioned transitionary period applied beyond the bulk phone records collection overhaul at the heart of the new law.

Judge Gerard E Lynch mused that the ACLU was “asking us to throw thunderbolts” into the transition scheme. Sack likened an injunction order on the NSA transition period to ordering planes to land mid-flight.

Sack and Lynch, in May, fatefully ruled that the provision of the Patriot Act that the Bush and Obama administrations relied upon for the bulk domestic phone records collection since 2006 never in fact authorized the NSA surveillance. Their ruling provided surveillance reformers in Congress with crucial momentum to pass the USA Freedom Act the following month.

Within hours of signing the Freedom Act into law, Barack Obama requested a secret surveillance court approve a final six months of bulk US phone metadata collection, and a judge approved on 29 June.

The second circuit panel also had tough questions for Justice Department attorney Henry Whitaker, who argued that Congress plainly intended to end the bulk phone records collection after a 180-day transition period.

“You have to read the statute as a whole,” Whitaker said, drawing a comparison with the supreme court’s June ruling on Barack Obama’s healthcare overhaul, which turned on four words in the massive law.

The judges nevertheless queried Whitaker on the future surveillance regime taking shape, as they expressed concern that they might still have to rule on the constitutionality of bulk collection, an issue raised by the ACLU that the judges avoided in May.

Whitaker also acknowledged that the NSA will not purge its massive stores of US phone data even after the transitionary period ends in November. While it will not collect phone metadata in bulk afterwards, Whitaker said that the NSA will continue to query its databases in “targeted” fashion to ensure the new system is “up to snuff”, as well as to comply with ongoing lawsuits.

Roughly 215 miles south, in a different federal courtroom, conservative lawyer Larry Klayman again asked a Washington DC federal judge to halt the NSA bulk US collection. Last week, an appeals court found that because Klayman could not sufficiently prove the NSA collected his cellphone records, a never-enforced injunction that federal district judge Richard Leon approved in 2013 could not stand.

The appeals court sent the case back to Leon to decide. Ahead of the Wednesday hearing, Klayman called the judge “courageous” in a statement.

“We are pleased that Judge Leon is moving quickly to address the continued Orwellian illegal surveillance of all Americans, not just my clients and me. Previously the Judge called our case the ‘pinnacle of national importance,’ and I could not agree with him more,” Klayman said.

In Manhattan, Abdo signaled that the ACLU will not be done challenging the bulk US phone metadata surveillance after the creation of the post-NSA collection regime. The ACLU “will seek in district court” to seek a thoroughgoing purge of American phone records from NSA databases, he said.