President Obama Loves NSA Surveillance

Claire Bernish | ANTIMEDIA

Obama wants the NSA’s bulk data surveillance to continue even though the courts ruled the practice unconstitutional.

President Obama loves NSA surveillance. Last week, his administration petitioned the secret FISA Court to temporarily reinstate the NSA’s sweeping bulk surveillance program for 180 days. Administration lawyers are asking the secretive court to simply ignore a federal appeals decision which deemed the bulk collection practice illegal. It seeks to restart the insidious and contentious program under the guise of the “transition” period mandated in the USA Freedom Act.

This request and its timing—filed within hours of the president asserting his support for the law, which would ostensibly ban the NSA program—has left doubts surrounding the government’s compliance with ending bulk collection in the first place.

The Second Circuit Court of Appeals ruled that massive collection of the data of all Americans could not possibly be “relevant” to a particular investigation and is therefore illegal. However, that court did not issue an injunction to cease data collection under the assumption that the provision would be permitted to lapse as a consequence of the ruling—and that the ongoing debate over the Freedom Act indicated a legislative solution was forthcoming.

But the FISA Court isn’t necessarily beholden to the Circuit Court’s decision.

“While the FISA Court isn’t formally bound by the second circuit’s ruling, it will certainly have to grapple with [its] interpretation of the ‘relevance’ requirement. The [court] will also have to consider whether Congress effectively adopted the second circuit’s interpretation [of relevance] when it passed the USA Freedom Act,” said ACLU Deputy Legal Director Jameel Jaffer, according to The Guardian.

“The government respectfully submits that such authorization is appropriate notwithstanding the Second Circuit’s recent panel opinion,” wrote Justice Department National Security Chief John Carlin in the request. The petition also argues that the Freedom Act “expressly extends” Section 215 through December 2019 and is the “same version” in effect when the FISA Court previously approved bulk surveillance.

Though the ACLU might seek an injunction with the appropriate court should the program be reinstated, Carlin said the government is “considering its litigation options in regard to the second circuit’s opinion”—a likely indicator of a challenge to such an injunction, as well as intent to bring the matter to the Supreme Court.

Fortunately, the government’s attempt to restart bulk surveillance already has a challenger.

On Friday, former Attorney General of Virginia, Kenneth Cuccinelli, filed a “motion in opposition to the government’s […] request to resume bulk data collection” on behalf of FreedomWorks, which states that resuming that program would be a Fourth Amendment violation against unreasonable searches and seizures. Such an appearance by a non-government party before the FISA Court is a rarity. Judge Michael Moseman gave the government a week to respond, but knocked a bit of wind from its sails in the process: he expressly prohibited the government from arguing that FreedomWorks lacks the appropriate standing to petition the FISA Court.

The government has until June 12 to respond and is not allowed to resume bulk collection in the interim.

“The only federal appeals court to have considered this surveillance concluded, after very careful analysis, that it’s unlawful. It’s disturbing and disappointing that the government is proposing to continue it,” said Jaffer.

Senator Ron Wyden, who has been a vocal opponent of sweeping surveillance, agrees: “This illegal dragnet surveillance violated Americans’ rights for fourteen years without making our country any safer, and the administration should leave it on the ash heap of history.”

If the FISA Court indeed grants the government’s wishes, the Freedom Act will likely come under challenge from privacy rights groups immediately. Because—exactly as a federal court found—there is no justification for the entire country to be under Big Brother’s watchful eye in the first place.

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