Federal judges pointedly questioned a Justice Department lawyer on Tuesday about the National Security Agency’s bulk collection of US phone data, in the opening day of case that represents a major step toward a supreme court ruling on the constitutionality of the program.



A three-judge panel from the second circuit court of appeals aimed skeptical questions at assistant attorney general Stuart Delery about the scope and breadth of the call-records dragnet, reported last year by the Guardian thanks to leaks from Edward Snowden.

Judge Gerard Lynch, a Barack Obama appointee, asked what was “so uniquely valuable about phone records” that compelled the NSA to collect all domestic phone records, in bulk, without individual suspicion of terrorism, espionage or any other wrongdoing.

Getting the data “rapidly has to be what this is about”, said Lynch, a former New York federal prosecutor. “Some of us up here have done this in criminal investigations.”

Delery was put in the position of defending a program that Obama no longer supports in public. The president earlier this year endorsed divesting NSA of its phone records databases, which struck the judges as curious.

The Justice Department official’s more immediate task was to convince the judges that they lacked the authority to consider the legality of the bulk call-records collection. “Congress has not provided jurisdiction to the court to reach statutory claims,” he argued. The judges noted that his contention left the panel in the position of considering constitutionality ahead of legality, an inversion of US legal doctrine.

While none of the three judges were inclined to rule from the bench Tuesday, they peppered Delery with sharp questions for over half an hour. Some were curious about factual aspects of the phone records program and appeared mildly frustrated at their inability to get public answers about what until last year was among the US government’s most closely held secrets.

“You seem to rely on declassified material,” judge Robert D Sack, a Bill Clinton appointee, told Delery. “What else aren’t you telling us?”

The case reached the appeals court after a December ruling from Judge William Pauley declined to grant its petitioner, the American Civil Liberties Union (ACLU), an injunction to stop the bulk records collection. That ruling contradicted one barely a week earlier from a Washington DC judge, Richard Leon, that called the collection “almost Orwellian”. Judges wondered aloud about the implications if they ordered a halt to the bulk collection while a DC appeals court, scheduled to hear a government appeal in the case Leon ruled on, reaches the opposite conclusion.

Alexander Abdo, an attorney for the ACLU, said the supreme court would likely have to resolve the dispute, something that legal scholars and observers on both sides of the past year’s surveillance debate have anticipated.

Abdo received a grilling from the judges as well, if not quite as intensely. They pushed Abdo to define a “reasonable” expectation of privacy over metadata, even as they later asked Delery if bulk phone data was “content-divulging.”

Underscoring an element of the case likely to be stated openly should the supreme court rule, Lynch mused to Abdo: “Say we’re wrong and somebody blows up a subway train.”

Since Pauley and Leon’s ruling, Congress, the NSA and the Obama administration have begun to embrace a legislative effort that would end the NSA’s direct bulk collection of domestic phone records, but permit the government to collect thousands of phone records based on a single court order, alarming privacy advocates. While the House passed the bill in May, the Senate still has not, and the legislative calendar is ticking down ahead of November’s congressional elections.

Until then, Abdo said, “the injury is ongoing on a daily basis”, as the NSA, through the secret Fisa court, continues to collect phone data in bulk ahead of legislative action, albeit on a somewhat circumscribed scale.

Judges on the appeals court openly joked about their likely status as a stepping stone for a landmark high-court decision on surveillance and privacy.

“We gave you probably more time than you’ll get in the supreme court,” Lynch told Delery as the assistant attorney general concluded his presentation.