Patriot Act In Uncharted Legal Territory As Deadline Approaches

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