Supreme Court Declines Review of NSA Phone Spying

Activists protest the surveillance of U.S. citizens by the NSA outside the Justice Department where President Barack Obama gave a major speech on reforming the NSA January 17, 2014.
National Journal
April 7, 2014, 6:17 a.m.

The Su­preme Court on Monday op­ted to not take up the con­sti­tu­tion­al­ity of the Na­tion­al Se­cur­ity Agency’s sur­veil­lance pro­gram that col­lects bulk tele­phone data of mil­lions of Amer­ic­ans, a de­cision that ar­rives as the oth­er two branches of gov­ern­ment are mov­ing for­ward with re­forms to the con­tro­ver­sial prac­tice.

The deni­al leaves in place a lower-court rul­ing late last year that de­scribed the NSA’s col­lec­tion of phone “metadata” — such as call times and phone num­bers but not the con­tent of con­ver­sa­tions — as “al­most Or­wellian” and a likely breach of the Fourth Amend­ment. Oth­er fed­er­al judges have deemed the pro­gram leg­al.

Law­yer and con­ser­vat­ive act­iv­ist Larry Klay­man had chosen to take his case dir­ectly to the Su­preme Court after Dis­trict Judge Richard Le­on’s high-pro­file Decem­ber de­cision, an un­usu­al move that by­passed the Ap­peals Court, on grounds the case was of im­me­di­ate, press­ing con­cern to the pub­lic.

But the Su­preme Court re­jec­ted Klay­man’s re­quest Monday by fail­ing to grant the case cer­ti­or­ari, a pro­cess that re­quires four of the nine justices to agree a pe­ti­tion mer­its the court’s full re­view.

The Court’s de­cision to not im­me­di­ately go ahead with a re­view of the NSA’s con­tro­ver­sial sur­veil­lance pro­gram ex­posed by Ed­ward Snowden last year means that any changes to it will — for the time be­ing — go through Con­gress and Pres­id­ent Obama, who has already an­nounced a pro­pos­al that would re­quire tele­phone com­pan­ies, rather than the gov­ern­ment, to re­tain the vast data­base of phone re­cords. To ac­cess that data, the NSA would need to first ob­tain an or­der from the For­eign In­tel­li­gence Sur­veil­lance Court, al­though the agency could by­pass the court in emer­gency situ­ations.

Obama has said the pro­gram will con­tin­ue in its cur­rent state un­til Con­gress passes le­gis­la­tion that closely re­sembles his pro­pos­al. A bill in­tro­duced last month by House In­tel­li­gence Com­mit­tee Chair­man Mike Ro­gers and Rep. Dutch Rup­pers­ber­ger, the pan­el’s top Demo­crat, echoes Obama’s plan, but would al­low the NSA to force com­pan­ies to turn over par­tic­u­lar re­cords that would be go through court re­view after the fact.

But even as law­makers and the pres­id­ent have weighed sur­veil­lance re­forms, some have urged the ju­di­cial branch to help re­solve the is­sue.

“My hope is that the Su­preme Court will take this case,” Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, a vo­cal de­fend­er of the in­tel­li­gence com­munity, said fol­low­ing Le­on’s high-pro­file “Or­wellian” rul­ing last year.

The Su­preme Court can still choose to con­sider cases in­volving the NSA’s sur­veil­lance activ­it­ies, but Monday’s de­cision re­af­firms ex­pect­a­tions that the justices would rather al­low the is­sue to per­col­ate with­in the cir­cuit courts first.

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