NSA Surveillance Challenge Lands in Federal Court

First there was the furor caused by the Edward Snowden classified secrets disclosures, then the lawsuits, and now the court hearings.

For the second time in a week, government lawyers will appear in federal court on Friday to defend the NSA program that gathers up bulk telephone records-called "telephony metadata"- as a measure to fight terrorism.

The government conducts what it calls "targeted electronic searches" on the data based on telephone numbers or other identifiers associated with terrorist organizations.

Civil liberties groups like the ACLU say the mass call-tracking program is "perhaps the largest surveillance operation ever carried out by a democratic government against its own citizens." The group has filed suit against the NSA and the hearing will occur Friday morning in New York.

This is "happening because of Edward Snowden," said Ben Wizner, Director at the ACLU. "This is what he wanted."

For the first time since Snowden's disclosures, the legality of the NSA program will be argued. This debate, said Wizner, should have happened 7 years ago.

Before getting to the merits of the case, however, the ACLU has a substantial jurisdictional issue to overcome as the government argues the ACLU lacks the "standing" (or legal right) to be in court in the first place.

Lawyers for the government say that the challengers' objections to the "telephony metadata program" are entirely speculative.

In court papers they stress that the program operates pursuant to orders from the secret Foreign Intelligence Surveillance Court (FISC) -a court created by Congress empowered to grant government applications for surveillance orders in foreign intelligence investigations. On top of the FISC's procedures, the government argues there is "stringent supervision and oversight" by all three branches of government to prevent the records from being used for other purposes than foreign intelligence.

The government claims it is not collecting the content of any telephone call, nor is it listening to or recording any call. It collects metadata and then only if the NSA has a "reasonable, articulable suspicion" is that metadata searched.

It says that the NSA only targets a "tiny fraction" of the information it has and that if the program had existed prior to 9/11 the government might have been able to stop one of the hijackers, Khalid al-Mihdhar. At the time, the NSA had intercepted call using overseas intelligence capabilities, but it thought al-Midhar was overseas. In fact, he was in San Diego.

Not surprisingly, the ACLU paints an entirely different picture of the program that collects the telephone records of millions of Americans.

Jameel Jaffer, one of the lead ACLU lawyers, tells the same court that the NSA is monitoring when someone makes a call, what time the call was placed and how long the conversation lasted. He says the program provides the government with a "rich profile" of every citizen and might possibly intrude on calls an individual might think he is shielding: calls to an abortion clinic, a support group for alcoholics, the psychiatrist, the suicide hotline.

Jaffer argues in court papers that the ACLU believes their own conversations with clients are compromised and that the ongoing surveillance not only exceeds the authority set out in the Patriot Act, but violates the First and Fourth Amendment. Jaffer says his group has the legal right to be in court in part because they are clients of Verizon, which turned over records to the NSA.

Last Monday, U.S. District Court Judge Richard Leon of the United States District Court for the District of Columbia heard similar arguments in a different challenge from a conservative public interest group called Freedom Watch.

Leon's focus was not the merits of the case, but whether his court had the authority to rule in the first place and whether the challengers had the legal right to be in court.

Leon did not rule from the bench, but instead asked for supplemental briefing from the parties. He suggested that no matter how he rules, he is aware the case would be appealed to a higher court, maybe even the Supreme Court. "I'm not sure how I'm going to come out," Leon said, "but I know it's going upstairs."

Also on Monday, the Supreme Court declined an unusual request from the Electronic Privacy and Information Center asking the Supreme Court to hear a challenge to the NSA surveillance even before the issue could play out in the lower courts. Without comment, the Supreme Court refused the request.