The Obama administration is poised to permanently kill the National Security Agency’s bulk collection of U.S. call data in six months.
But that’s not fast enough for former Virginia Attorney General Ken Cuccinelli, who believes a recent appeals court decision deeming the surveillance program illegal should prevent any extension at all from going forward.
Cuccinelli, a Republican who unsuccessfully ran for Virginia governor in 2013, filed a legal challenge on Friday in the Foreign Intelligence Surveillance Court asking to halt the Obama administration’s “imminent or recently-made request” to revive the NSA’s phone dragnet, which shut down earlier this month due to the temporary lapse of portions of the Patriot Act. The challenge is joined by the conservative group FreedomWorks.
Last week, Congress passed and Obama signed into law the USA Freedom Act, a surveillance-reform package that will effectively end the NSA’s bulk-collection regime in favor of a more targeted system allowing the government to ask for records from phone companies on an as-needed, FISA Court-approved basis.
The Freedom Act also calls for a six-month transition window to allow the intelligence community time to migrate toward the new system. During that time, the government has said it will seek to continue the bulk-collection program unchanged.
But the Justice Department’s request to restart the program is the first time it has sought permission for domestic bulk-data collection since the 2nd U.S. Circuit Court of Appeals ruled in May that it was illegal and never intended to be authorized by Congress.
That ruling, Cuccinelli argues, should prompt the FISA Court to overturn its prior orders authorizing the program. His challenge claims that the NSA program is unconstitutional because it violates the Fourth Amendment’s protection against unreasonable searches and seizures.
Cuccinelli also makes note of the Freedom Act’s so-called amicus provision, which requires the FISA Court to consult with a panel of privacy experts when reviewing government spying orders. Privacy advocates, who have derided the FISA Court as a “rubber-stamp factory,” view the provision as an essential check on the scope of surveillance requests.
Cuccinelli suggests that he could step in to fill that role as an alternative to his formal challenge.
“The presiding judge of this Court may designate counsel herein as amicus curiae,” Cuccinelli writes, adding that he “is experienced in addressing privacy matters, civil liberties issues and is a constitutional lawyer.”
The administration has not responded to repeated questions about whether the new FISA Court request will be subject to the Freedom Act’s amicus provision. It has also not clarified whether its request will seek approval for 90 days of phone-metadata collection, as previous orders have granted, or if it would attempt to fill the entire 180-day transition window with one order.
In a statement, the Justice Department defended the NSA metadata program and said its effort to renew bulk data-gathering for an additional six months is appropriate and uncontroversial given passage of the Freedom Act.
“As we’ve repeatedly stated before, we believe the program is lawful,” department spokesman Marc Raimondi said in an email. “Moreover, in passing the Freedom Act Congress provided for a 180 day transition period for the government to continue the existing collection program until the new mechanism of obtaining call detail records is implemented. As we have previously indicated, consistent with this transition period we are seeking a new order from the FISC authorizing the continuation of this collection during the transition period.”
Cuccinelli, who serves as president of the Senate Conservatives Fund and has taken to oyster farming since his gubernatorial defeat to Terry McAuliffe, has made legal challenges to NSA mass surveillance before. Last year he was lead counsel on a class-action lawsuit led by Sen. Rand Paul that claimed the phone-records program violated the Fourth Amendment for every U.S. citizen who used a phone. That lawsuit fizzled, however, and Paul is not a part of Cuccinelli’s new challenge.