Secret Court to NSA: Keep Up the Spying

The NSA can continue its bulk collection of telephone metadata--a program a federal judge slammed as "almost Orwellian"--the secretive Foreign Intelligence Surveillance Court said on Friday.

The decision allowing for a three-month continuation marks the 36th time the court has authorized this surveillance program.

In a statement issued Friday, the office of Director of National Intelligence James Clapper stated:

It is the administration's view, consistent with the recent holdings of the United States District Courts for the Southern District of New York and Southern District of California, as well as the findings of 15 judges of the Foreign Intelligence Surveillance Court on 36 separate occasions over the past seven years, that the telephony metadata collection program is lawful. The Department of Justice has filed an appeal of the lone contrary decision issued by the United States District Court for the District of Columbia.

That contrary ruling was issued last month by U.S. District Court Judge Richard Leon, who declared, "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval."

"We continue to believe that the NSA's call-tracking program violates both statutory law and the Constitution."
--Jameel Jaffer, ACLU"We continue to believe that the NSA's call-tracking program violates both statutory law and the Constitution," the ACLU's Jameel Jaffer told the Washington Post. "While the government has a legitimate interest in tracking the associations of suspected terrorists, tracking those associations does not require the government to subject every citizen to permanent surveillance."

In a separate decision on Friday, an appeals court ruled that a secret legal opinion by the Justice Department that allows for the FBI to obtain customers' records from telecommunications companies without a subpoena or court order can remain secret.

The New York Times' Charlie Savage reports that

The ruling, by the United States Court of Appeals for the District of Columbia Circuit, came down on the side of a broad conception of the executive branch's power to keep secret its interpretation of what the law permits it to do. The ruling may make it easier for the government to shield other memos by the Justice Department's powerful Office of Legal Counsel from disclosure under the Freedom of Information Act.

Mark Rumold, a lawyer at the Electronic Frontier Foundation, which had filed a lawsuit asking for the OLC memo to be made public, said that his group was "disappointed by [the] decision, which allows the government to continue to secretly reinterpret federal surveillance laws in ways that diverge significantly from the public's understanding of these laws."

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