Patriot Act In Uncharted Legal Territory As Deadline Approaches

Will the Patriot Act mean something different if lawmakers renew it now that they know the full extent of the NSA’s spying?

National Journal
May 10, 2015, 4 p.m.

Can Con­gress over­rule a court de­cision without chan­ging a word in the law?

That’s the ques­tion that law­makers are wrest­ling with after a fed­er­al ap­peals court ruled last week that a con­tro­ver­sial Na­tion­al Se­cur­ity Agency sur­veil­lance pro­gram is il­leg­al. The U.S. Court of Ap­peals for the 2nd Cir­cuit didn’t ad­dress the claims that the pro­gram vi­ol­ates con­sti­tu­tion­al pri­vacy rights. But the judges did rule that the NSA’s mass col­lec­tion of mil­lions of U.S. phone re­cords over­steps the au­thor­ity that Con­gress gave the agency un­der the Pat­ri­ot Act.

Al­though Con­gress has re­newed the Pat­ri­ot Act sev­er­al times since first passing it in 2001, most law­makers had no idea how the NSA was us­ing the powers, the court found. “Con­gress can­not reas­on­ably be said to have rat­i­fied a pro­gram of which many mem­bers of Con­gress—and all mem­bers of the pub­lic—were not aware,” Judge Ger­ard E. Lynch wrote in a un­an­im­ous de­cision for the court.

The key pro­vi­sion of the Pat­ri­ot Act, Sec­tion 215, is set to ex­pire in just a few weeks. Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell and oth­er top Re­pub­lic­ans are push­ing for a clean reau­thor­iz­a­tion of the sur­veil­lance law, ar­guing that the NSA pro­gram is crit­ic­al for thwart­ing ter­ror­ist at­tacks.

(RE­LATED: Fed­er­al Ap­peals Court Rules NSA Spy­ing Il­leg­al)

Ex­tend­ing the law this time might give it a new mean­ing be­cause, in the wake of Ed­ward Snowden’s leaks of clas­si­fied doc­u­ments, law­makers would un­der­stand for the first time what they were ac­tu­ally vot­ing on.

“If they reau­thor­ize the pro­gram, the basis on which the 2nd Cir­cuit re­jec­ted the pro­gram fails, or at least is sub­stan­tially un­der­mined and would have to be re-lit­ig­ated from scratch,” said Stew­art Baker, a part­ner at the law firm Step­toe & John­son and a former gen­er­al coun­sel for the NSA.

Con­gress will either re­new the pro­gram, change it, or let it ex­pire. No mat­ter which op­tion it chooses, the court’s de­cision will be ir­rel­ev­ant in a few weeks, Baker said.

“This was a 97-page law re­view art­icle,” he said. “Its sig­ni­fic­ance is close to zero.”

Sen­ate In­tel­li­gence Com­mit­tee Chair­man Richard Burr, a North Car­o­lina Re­pub­lic­an who also is­push­ing for a clean re­new­al of the Pat­ri­ot Act, ar­gued that the court de­cision is wrong now, and Con­gress doesn’t have to do any­thing to ad­dress it.

(RE­LATED: The Sen­ate’s GOP Lead­er­ship Is Dead-Set on a Com­plete Pat­ri­ot Act Ex­ten­sion)

“I think the stat­utory lan­guage today al­lows the NSA to do ex­actly what they’re do­ing,” he said, adding that the is­sue will likely end up at the Su­preme Court. “I have a very tough time think­ing the Su­preme Court would look at this law”¦ and come to the con­clu­sion that we didn’t em­power the NSA to do bulk col­lec­tion.”

But the NSA’s crit­ics ar­gue that it won’t be so easy for Con­gress to ig­nore the court’s rul­ing. Words have mean­ing, they say, and Con­gress can’t stretch words to mean something new.

“Words don’t just mean whatever the NSA says they mean,” said Al­varo Bedoya, the ex­ec­ut­ive dir­ect­or of the Cen­ter on Pri­vacy & Tech­no­logy at Geor­getown Law Cen­ter. If law­makers want to au­thor­ize the mass col­lec­tion of Amer­ic­ans’ phone re­cords, they would have to write new lan­guage for that, he ar­gued.

Sec­tion 215 of the Pat­ri­ot Act cur­rently gives the NSA the au­thor­ity to seize any “tan­gible thing” that is “rel­ev­ant” to an in­tel­li­gence in­vest­ig­a­tion. The gov­ern­ment ar­gues that all U.S. phone num­bers, call times, and call dur­a­tions are “rel­ev­ant” be­cause the agency uses them to com­pile a vast data­base that it then sifts through for ter­ror­ism con­nec­tions.

(RE­LATED: Mitch Mc­Con­nell Re­fuses to Budge on Pat­ri­ot Act After Court Rul­ing Im­per­ils NSA Spy­ing)

But the court said pri­vacy ad­voc­ates are right to be­lieve that “such an ex­pans­ive concept of ‘rel­ev­ance’ is un­pre­ced­en­ted and un­war­ran­ted.”

Neema Guliani, a le­gis­lat­ive coun­sel for the Amer­ic­an Civil Liber­ties Uni­on, which brought the case be­fore the 2nd Cir­cuit, said the court de­cision shows that the Pat­ri­ot Act can’t be used to jus­ti­fy mass sur­veil­lance. “The court was pretty blunt in say­ing the plain lan­guage of the stat­ute is clear and that can’t be su­per­seded,” she said.

She also ar­gued that it’s ex­tremely un­likely that a ma­jor­ity of Con­gress will agree to reau­thor­ize the Pat­ri­ot Act without sub­stan­tial re­forms. The House is set to vote this week on the USA Free­dom Act, which would ex­tend the Pat­ri­ot Act but keep the bulk data­bases of phone re­cords out of the hands of the NSA.

The court’s de­cision has giv­en the NSA’s crit­ics in Con­gress a new boost of mo­mentum, Guliani ar­gued. “I would be sur­prised if, giv­en the Second Cir­cuit de­cision, mem­bers of Con­gress were will­ing to reau­thor­ize pro­grams that in­de­pend­ent over­sight bod­ies and the courts have now found were a vi­ol­a­tion of the law,” she said.

But Sen. Rand Paul, who voted against the USA Free­dom Act last year be­cause he said it didn’t go far enough in rein­ing in the NSA, ar­gued that in the wake of the court’s rul­ing, Con­gress should be es­pe­cially cau­tious about any bill to ex­tend sur­veil­lance au­thor­it­ies.

“Now that the ap­pel­late court has ruled that Sec­tion 215 doesn’t au­thor­ize bulk col­lec­tion, would the USA Free­dom Act ac­tu­ally be ex­pand­ing the Pat­ri­ot Act?” the Ken­tucky Re­pub­lic­an and pres­id­en­tial can­did­ate asked in an op-ed in Time. “That would be a bit­ter irony if the at­tempt to end bulk col­lec­tion ac­tu­ally gave new au­thor­ity to the Pat­ri­ot Act to col­lect re­cords.

—Dustin Volz con­trib­uted to this art­icle

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