Let us spy for 6 months more: NSA asks court for extension of expired surveillance program

Reuters / Carlo Allegri
Department of Justice officials have asked a federal court to restart the NSA spy programs shut down when portions of the Patriot Act expired on June 1. The US government claims the Freedom Act allows surveillance to continue for six more months.

In a filing to the Foreign Intelligence Surveillance Court (FISC), revealed Monday, the Department of Justice (DOJ) requested permission to continue the “bulk production of call detail records” for 180 days, arguing that the USA Freedom Act allows a six-month transition period.

The motion was filed at 9:50 PM on Tuesday, June 2, shortly after President Obama enacted the Freedom Act following its passage in the Senate. It was signed by Assistant Attorney General John P. Carlin and Deputy Assistant Attorney General Stuart J. Evans.

The Government respectfully submits that such authorization is appropriate notwithstanding the Second Circuit's recent panel opinion in ACLU v. Clapper, No. 14-42 (2d Cir. May 7, 2015),” Carlin and Evans wrote, referring to the Second Circuit Court’s decision ruling the Section 215 of the Patriot Act illegal.

Second Circuit rulings do not constitute controlling precedent for this Court,” the officials wrote to the FISC. “Although each such request sought a large number of call detail records, the vast majority of which ultimately will not be terrorist-related, the Government has argued and this Court has agreed… that the NSA bulk telephony metadata collection program is authorized by Section 215 of the USA PATRIOT Act.

Furthermore, the officials wrote, the USA Freedom Act extended Section 215 powers from the Patriot Act through December 15, 2019.

On June 5, former Virginia attorney-general Ken Cuccinelli and the conservative group FreedomWorks filed their own motion with the FISC, urging the court not to approve the government’s request, on grounds that the NSA program violated the US Constitution’s Fourth Amendment.

READ MORE: NSA begs courts for 6-month reboot of phone-snooping programs

"As we've repeatedly stated before, we believe the program is lawful," replied Justice Department spokesman Marc Raimondi. “Moreover, in passing the Freedom Act Congress provided for a 180 day transition period for the government to continue the existing collection program until the new mechanism of obtaining call detail records is implemented.”

Section 215 actually expired on May 31, after the extraordinary Sunday session of the Senate adjourned without passing the Freedom Act, partly thanks to the delaying tactics by Senator Rand Paul (R-KY), Ron Wyden (D-Ore.) and Martin Heinrich (D-NM). The NSA had to shut down the program by the evening of May 31, to comply with the law. Senators eventually voted to pass the House-approved text of the USA Freedom Act on June 2.

Reacting to the rumors the government might request permission to restart the program, Ron Wyden (D-Oregon), member of the Senate Intelligence Committee and one of the Senators who crossed the aisle to work with Paul against the Patriot Act extension, urged against it.

"I see no reason for the executive branch to restart bulk collection, even for a few months, and I urge them not to attempt to do so,” Wyden told the Guardian on June 4. “This illegal dragnet surveillance violated Americans’ rights for 14 years without making our country any safer, and the administration should leave it on the ash heap of history.

The FISC has given the government until June 12 to respond to the challenge by Cuccinelli and FreedomWorks. Until then, the NSA cannot restart the bulk collections program.