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Obama Administration fights quick Supreme Court review of NSA program

The Obama Administration is fighting an effort to have the Supreme Court immediately review the legality of the National Security Agency’s call-tracking program.

In a brief filed with the high court, the Justice Department argues that the Electronic Privacy Information Center’s petition asking the justices to weigh in on the issue is premature and that the issue should be allowed to percolate in the lower courts.

After former NSA contractor Edward Snowden’s leaks about the telephone metadata program became public in June, EPIC went to the Supreme Court in July, asking for a rare “mandamus” review of one of the Foreign Intelligence Surveillance Court orders authorizing the program.

“The petition… does not meet the stringent requirements for mandamus relief, and this Court lacks jurisdiction to issue a writ of certiorari to the FISC in these circumstances. Accordingly, the petition should be denied,” Solicitor General Donald Verrilli Jr. wrote in the brief filed Friday, made public by EPIC this week, and posted here.

“The mandamus petition does not establish that it is more than speculative that the NSA has reviewed, or might in the future review, records pertaining to petitioner’s members, particularly given the stringent, FISC-imposed restrictions that limit access to the database to counterterrorism purposes,” Verrilli added.

The brief points to three lawsuits pending in district courts over the NSA program: one filed by the American Civil Liberties Union in June in Manhattan, another filed by the Electronic Frontier Foundation in July in San Francisco, and a third filed by conservative legal activist Larry Klayman in Washington in June.

“Mandamus relief is unwarranted unless ‘the party seeking issuance of the writ’ has ‘no other adequate means to attain the relief he desires,’” Verrilli wrote.

While the Justice Department filing essentially urges EPIC to seek similar review in a district court, government lawyers do not concede that the group would be able to get a ruling in that forum on the legal merits of the program.

The government brief offers a short substantive defense of the NSA program, contending that data about virtually every phone call to, from, or within the U.S. in the past five years is “relevant” to terrorism investigations.

“Applying that broad understanding of relevance, lower courts, in appropriate circumstances, have authorized discovery of large volumes of information where the requester seeks to identify smaller amounts of information within the data that could directly bear on the matter,” the brief says. “Congress was aware of that broad understanding of the word ‘relevance’ when it passed Section 1861 [in 2001 and reauthorized it thereafter]. Absent any countervailing indications, therefore, this Court should presume that Congress intended to incorporate a broad understanding of relevance into Section 1861.”

Not everyone in Congress agrees with that. Rep. Jim Sensenbrenner (R-Wis.), who co-sponsored the Patriot Act, says the Justice Department has exceeded the bounds of the law and the intent of lawmakers by obtaining data on vast numbers of phone calls even when the vast majority of them have no relevance to any terrorism probe.

The Justice Department also argued that allowing EPIC’s petition to proceed at the high court would thwart a provision in the law that limits appeals on such surveillance orders to the government and the party served with the order—in this instance, telecom provider Verizon.

“It would defeat the evident purpose behind Section 1861’s express limitation on the persons who can appeal to the FISA Court of Review and ultimately invoke this Court’s certiorari jurisdiction if a third party for whom there is no basis to participate even before the FISC could obtain review by changing the label on its appellate papers to seek mandamus relief instead,” Verrilli wrote.

EPIC attorney Alan Butler offered this reaction to the DOJ filing: "The Solicitor General's filing highlights the importance of EPIC's challenge (the government was not required to respond under Supreme Court rules, but it chose to after reviewing the petition). As EPIC previously outlined, the Supreme Court is the only possible venue for users affected by the NSA telephone records collection program to seek review of the underlying FISC decision. The current district court cases brought by other groups have challenged the NSA's collection and use of the metadata, rather than the FISC order. The FISC's interpretation of "relevance" under the Patriot Act Section 215 is inconsistent with established law and clearly beyond the scope of what Congress intended."

UPDATE (Wednesday, 1:50 P.M.): This post has been updated with Butler's comment.