A federal appeals panel heard arguments in New York City on Tuesday from attorneys representing the American Civil Liberties Union and the United States government as the court considers the future of a controversial phone surveillance program.
The three democratically-appointed judges serving the Second Circuit Court of Appeals spent two hours asking questions of the ACLU and Justice Department lawyers during the hearing, but reserved making a decision just yet concerning the matter at hand: the US intelligence community’s reliance on Section 215 of the Patriot Act to receive in bulk the metadata, or raw call records, pertaining to the daily phone habits of millions of Americans.
Last June’s disclosure of classified documents detailing how the US National Security Agency compels telecommunication companies for theserecords spawned a slew of lawsuits, including one brought by the ACLU only days after journalists began to report on the leaks attributed to former NSA contractor Edward Snowden. And although a federal court judge serving the District of Washington, DC agreed with the plaintiffs in one case that the government’s use of Sec. 215 was likely unconstitutional and “almost Orwellian,” Judge William Pauley ruled for the Southern District of New York last December in the government’s favor and insisted “There is no evidence that the government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks,” and that the NSA’s efforts arenecessary to combat the “bold jujitsu” of international terrorism.
Attorneys for the ACLU soon after appealed Judge Pauley’s decision, which in turn took lawyers to the Second Circuit this week to answer questions before the appellate panel now tasked with deciding if the lower court’s ruling is worthy of standing.
“The purpose of this work is to detect and disrupt future plots,” Assistant Attorney General Stuart Delery told the court on Tuesday on behalf of the government, adding later that Sec. 215 provides authorities with the ability to request “any tangible thing” relevant to a terrorism investigation.
Judge Robert Sack questioned whether that qualified the government to go after almost anything, however, remarking at one point before the court: “If everything is ‘relevant,’ ‘relevance’ drops out. It just doesn’t exist.”
“It’s hard to imagine that [Section 215’s] rather innocuous language” means the government can collect phone records indiscriminately and in bulk, Judge Gerard E. Lynch told Delery during the hearing. “You’re really saying, ‘They’re not relevant to an investigation right now; we just want to have them in case they become relevant’ ” in the future, he said.
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