Ken Cuccinelli Asks Court to Block Obama Administration From Reviving NSA Spying Program

The former Virginia attorney general doesn’t want to wait six months to end the NSA’s mass surveillance of domestic phone records.

Attorney General for Virginia and Republican candidate Ken Cuccinelli speaks during a debate with former DNC Chair and Democratic candidate Terry McAuliff on September 25, 2013 in McLean, Virginia. Voters go to the polls November 5 to decide which candidate will replace incumbent governor Bob McDonnell, who has reached his term limits. 
National Journal
June 8, 2015, 9:03 a.m.

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.

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