In the past week, two fights over domestic spying—one political and one legal—have converged in Congress and the courts. They both began in June, 2013, when the Guardian, as part of a series based on files leaked to it by Edward Snowden, published a secret National Security Agency document ordering Verizon Business Services to hand over call records for all its customers. This immediately caught the attention of the American Civil Liberties Union, not least because it was itself a Verizon Business customer. Its affiliate, the New York Civil Liberties Union, had been one, too. This was not so strange—Verizon is one of the few major providers in the country. (Government officials soon acknowledged that the other providers received similar orders.) But it had legal consequences. A number of previous attempts to challenge secret government surveillance practices in court had failed because the plaintiffs lacked what’s called standing: they couldn’t prove that they, in particular, had been affected, and you need to do that to bring a suit. Just six days after the first Snowden story appeared, the A.C.L.U. went to court, Verizon bill in hand, claiming that the law and the Constitution had been violated.
This was not the only response. The dismay about the bulk collection of phone records was broad; many Americans had assumed that this was the sort of thing for which the government needed an individualized warrant, rather than a dragnet. President Barack Obama and other defenders of the program said, though, that the practice was legal under Section 215 of the Patriot Act, which was first passed after September 11, 2001, and which allows the government to collect “tangible things” that are “relevant” to a particular investigation. That rationale seemed dubious. The N.S.A. had relied on the secretly operating Foreign Intelligence Surveillance Act court. Without access to its classified legal interpretations, a citizen, or a congressman, even one reading the bill carefully, would still not have known that the assembly of the phone records of just about every American into a searchable database was an activity the law envisioned. (Indeed, James Clapper, the director of National Intelligence, had denied that such a thing was taking place in testimony before Congress. He is a defendant in the A.C.L.U. case.) But the N.S.A.’s story was that it was acting in perfect accord with Section 215, and it has largely been allowed to stick to it. Bulk collection, with some tweaks, has continued.
Section 215, however, expires on June 1st, two weeks from now. Congress has, basically, three options. One is to let Section 215 die, and, presumably, the bulk-collection program with it. (But that might allow the N.S.A. simply to tear up the previous order and look for another route to the same end.) A second option is to bring the program above board: pass a new law that would allow the N.S.A. more controlled access to what it said was valuable information. This is the U.S.A. Freedom Act, and it has both Republican and Democratic supporters, including Patrick Leahy, of Vermont, who has a strong record on civil liberties. The White House has said that the President will sign it. The House passed a version on Wednesday, by a vote of 338-88, and sent it to the Senate. But it may run into trouble there, because of a third option: to extend Section 215 and, implicitly, accept the N.S.A.’s interpretation and let it keep collecting everyone’s records with what amounts to impunity. This is the option favored by many Senate Republicans, foremost among them the Majority Leader, Mitch McConnell, who refers to it as a “clean” renewal of Section 215.
Then, last Thursday, the Second Circuit Appeals Court found that the A.C.L.U. was, at least partly, correct: Section 215 did not authorize bulk collection. The program was never legal. Once the court reached that finding, it didn’t have to address the question of whether the practice was unconstitutional, but it did suggest that it was a pretty good one to ask. That all made McConnell’s clean renewal look pretty dirty.
“This is a very delicate issue,” John Boehner, the Speaker of the House, said earlier this week of the House version of the Leahy bill. “I know members would like to offer some amendments, but this is not a place for people to bring out the wrecking ball.” The members he was referring to were libertarians in his own party, who, in this case, want more privacy protections than the bill provides. They are not the only potential wrecking-ball rig operators, though: there is also the McConnell faction, which seems unmoved by the Second Circuit decision and continues to act as though it’s enough to renew Section 215. (As Benjamin Wittes points out, ignoring the court, at the very least, “involves serious litigation risk.”) McConnell may insist on bringing a five-year renewal of the Patriot Act to the floor, as is, which could set off more inter- and intra-party fights. Boehner said, “I’m not going to speculate on what the Senate may or may not do. But all I know is that these programs expire at the end of this month.”
So, while this is a fight about the future of the bulk-collection program, there are bigger puzzles on the table, which have to do with the intersection of law and politics. One is about the direction of both parties, which are not internally unified on surveillance questions. Another is where the public should look for redress, in the face of an uproar like the one that Snowden’s documents brought about. Can Congress handle it, or is this where the courts must come in? Perhaps the largest question is how much laws, and their language, matter. The most outrageous aspect of the N.S.A. revelations was that the agency believed that it could have its own hidden reading of laws like Section 215, divorced from the ordinary meaning of the words that Congress debated and passed.
The crucial finding of the Second Circuit decision—and why it matters, going forward, even if Section 215 expires—is that the meaning of words does matter. Two central ones in this case are “relevance” and “investigation.” The judges found that the government’s argument, in response to the A.C.L.U., amounted to saying that everyone’s phone records were relevant because, someday, “utilizing its ability to sift through the trove of irrelevant data,” the government might find something helpful. The judges added, “The interpretation urged by the government would require a drastic expansion of the term ‘relevance.’ ”
Similarly, the court found that, when the government asked to connect these searches and seizures to a particular investigation, it had a habit of just invoking names of terrorist groups, which has all the specificity of saying that the world is a dangerous place: “Put another way, the government effectively argues that there is only one enormous ‘anti-terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”
Although the court found that the law was being broken, it held off on ruling on the A.C.L.U.’s request for a preliminary injunction that would end the program immediately. That was because, the judges said, of the June 1st deadline. Something would have to change then. The restrictions introduced in the U.S.A. Freedom Act—having companies like Verizon hold onto the records, instead of the government; making sure that searches were more specific—address the same problems that the court recognized. On the other hand, the court noted, “If Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.” The court’s decision explicitly left open the possibility that, in either of those scenarios, whatever replaced Section 215 would still face a tough constitutional challenge. (And it indicated that it would be better if any higher court dealt with the law in place after June 1st.) Until then, the judges, it seemed, wanted to give Congress room to do the right thing and end an illegal practice.
Congress, of course, has been known to do nothing. . .