Six days after the first Snowden leak appeared on the front pages of newspapers worldwide, the American Civil Liberties Union filed a lawsuit to stop the mass surveillance by US intelligence agencies. A New York federal judge ruled against the ACLU in December. Today, ACLU lawyers made a second effort, making their case to a three-judge panel on the US Court of Appeals for the 2nd Circuit. It's the first time a US Appeals Court has considered whether the "bulk telephony" database is constitutional.

Oral arguments stretched on for nearly two hours this morning, an unusually long argument for the US Court of Appeals for the 2nd Circuit, which often gives just 10 or 15 minutes to each side for oral argument in an appeal case. C-SPAN was allowed to record and broadcast the full proceeding, another unusual step in an appeals court that's nearly always closed to cameras. The proceedings can be viewed on C-SPAN's website.

ACLU v. Clapper is one of three cases challenging mass surveillance that are now headed to appeals courts. Another case, Klayman v. Obama, was filed in Washington, DC federal courts just one day after the surveillance revelations. In that case, DC-based US District Judge Richard Leon ruled that the NSA's spying technology was "almost Orwellian" and likely unconstitutional.

A third case, Smith v. Obama, was filed later, and also resulted in the NSA program being upheld. It's now headed to the 9th Circuit, joined by the ACLU and Electronic Frontier Foundation.

In a blog post accompanying today's argument, ACLU lawyer Alex Abdo suggested that even getting the issues debated in the open was a step forward.

"The legal challenges are also significant for the simple fact that they have forced the government to defend its program in public," he wrote. "For over a decade, the government has thwarted all attempts at public judicial review of the legality of the surveillance programs it inaugurated in the aftermath of 9/11."

“The injury is ongoing”

Today's extensive questioning, which focused on just a few of the questions raised in both sides' briefs, didn't suggest in any obvious way how the three-judge panel might rule.

Abdo spoke first, making his case that the broad collection program warrants an injunction.

"If Section 215 [of the Patriot Act] permits bulk collection, it would be permitted not just for phone records but for any records," he said. "Not just in the context of terrorism, but in the context of any crime involving more than one person."

"If the government were to get FISA Court approval before entering a query, would that essentially end the controversy here?" asked Senior Judge Robert Sack.

"We would love it if the government ended bulk collection of Americans' phone records," said Abdo. He continued:

If the government did that, and purged the records it currently has, that would resolve everything put at issue by our preliminary injunction motion. But that is not the current state of affairs. It would be unwise to expect this Congress or the next to act... the injury is ongoing on a daily basis. Even if Congress acts in several months, we're entitled to a remedy today.

Senior Judge Robert Sack asked if the prudent thing might not be to wait. "Might we not say—great, we agree with you, but there's other litigation going on," he said. "We want to let the Supreme Court have a kick at the ball. Does it make sense to say, here are our views—and then wait until the DC Circuit speaks, and the Supreme Court has an opportunity to speak? Before actually making an order, an injunction? Suppose we're wrong, and someone blows up a subway train?"

It would be well within the court's authority to act now, said Abdo.

Much of Abdo's argument centered around the issue of whether the warrantless phone database should be legal under the 4th Amendment, which bans "unreasonable" searches without a warrant. The government has argued that "pen registers," which capture which numbers are called by a telephone, are legal under a 1979 case, Smith v. Maryland. That's the precedent that Leon essentially said wasn't appropriate for the digital age, when he ruled against the NSA.

Circuit Judge Gerald Lynch suggested they put aside Smith v. Maryland for a minute. Even without that precedent, "isn't there still quit a bit to the government's argument—that in this context, there's not much expectation of privacy in this record?" He continued:

In the opening of your brief you have this nice parade of horribles, all the things that the government could find out. Whether it's likely someone was HIV positive, or had an abortion. But couldn't Verizon find out those things if it chose? And go into the records it has, and determine the same kind of search, of the same kind of private information?

"I don't think our contract provides for unlimited access to our call records," said Abdo. "No one has ever suggested that Verizon's ability to listen to the content of our communications means we have no expectation of privacy."

"How, without any fact-finding at all, can we begin to know whether this is reasonable or not?" asked Sacks.

Fact-finding isn't necessary, said Abdo, in part because President Barack Obama has already acknowledged—by his openness to intelligence reforms—that the government doesn't need a vast telephony database to fight terror. "The government has conceded there are alternative, less intrusive means," he said.

"If the president thought that, then why did he send his lawyers here to say that you should lose?" asked Lynch.

Questions of intent

"This case concerns an intelligence program that has been considered and approved by all three branches of government," said Assistant Attorney General Stuart Delery, arguing for the government.

The collection of "call detail records" was "twice reauthorized without change, after Congress was briefed on this very program."

"It also allows [the intelligence agencies] to build a historical repository for some period of time," and to see connections between users of different telephone companies, said Delery. "Going in, the government doesn't know which of the metadata might reveal an important connection to a known terrorist."

"So you're saying they're not relevant, really, to an investigation right now," said Lynch. "You're saying that you want to have them in case they become relevant."

Both Sacks and Lynch questioned the idea that Congress had OK'd the program in any kind of straightforward way.

"I wonder how valid the ratification argument is when you're dealing with secret law," said Sacks. "I'm not sure that ratification carries as much baggage as you want it to, until June of 2013, when people knew what was going on."

Delery pushed forward with his argument that Congress had understood and approved the programs. He even noted the oblique 2011 warnings about spying made by Sens. Ron Wyden (D-OR) and Mark Udall (D-CO), as proof that Congress had known what they were doing.

"The intelligence committees were briefed over time, and in advance of reauthorization in both 2010 and 2011, the executive branch provided a briefing paper to be made available to all members [of the House of Representatives] in 2010, before the ratification, and of all Senators in 2011."

"I would find this a lot more reassuring if it were subject to an adversary process," said Sacks.



"As Your Honor may be aware, changes to the program [under consideration] would include provisions that allow for the kind of approach you're talking about," said Delery. "These [databases] can only be queried for counter-terrorism purposes, and then only when the selection term is connected, associated with a specified foreign terrorist organization."

Abdo was allowed to get in the last word with a short rebuttal.

"Ratification... is not a game of 'gotcha' with Congressional intent," he said. "Many members of Congress weren't aware of the program. Those that were, weren't provided legal analysis of the program. And those that were, weren't allowed to discuss it with their colleagues or constituents."

Update 9/3: Story changed to reflect that Smith v. Obama is also on appeal.