WASHINGTON— While Congress mulls how to curtail the NSA’s collection of Americans’ telephone records, impatient civil liberties groups are looking to legal challenges already underway in the courts to limit government surveillance powers.
Three appeals courts are hearing lawsuits against the bulk phone records program, creating the potential for an eventual Supreme Court review. Judges in lower courts, meanwhile, are grappling with the admissibility in terror prosecutions of evidence gained through the NSA’s warrantless surveillance.
Advocates say the flurry of activity, which follows revelations last year by former NSA contractor Edward Snowden of once-secret intelligence collection programs, show how a post-9/11 surveillance debate once primarily hashed out among lawmakers in secret is being increasingly aired in open court — not only in New York and Washington but in places like Idaho and Colorado.
“The thing that is different about the debate right now is that the courts are much more of a factor in it,” said Jameel Jaffer, deputy legal director at the American Civil Liberties Union. Before the Snowden disclosures, he said, courts were generally relegated to the sidelines of the discussion. Now, judges are poised to make major decisions on at least some of the matters in coming months.
Though it’s unclear whether the Supreme Court will weigh in, the cases are proceeding at a time when the justices appear increasingly comfortable taking up digital privacy matters — including GPS tracking of cars and police searches of cellphones.
The cases “come at a critical turning point for the Supreme Court when it comes to expectations of privacy and digital information,” said American University law professor Stephen Vladeck.
Revelations that the government was collecting bulk phone records of millions of Americans who were not suspected of crimes forced a rethinking of the practice, and President Barack Obama has called for it to end.
Since then, the House has passed legislation that civil libertarians say did not go far enough. In the Senate, Vermont Democrat Patrick Leahy, the Judiciary Committee chairman, is seeking a vote on a stricter measure to ban bulk collection, which has bipartisan backing and support from the White House.
As Congress considers the matter, the federal judiciary has produced divided opinions that are winding through appeals.
The New York-based 2nd U.S. Circuit Court of Appeals recently heard arguments in an appeal of a judge’s opinion that had upheld the program’s legality. The D.C. appeals court hears arguments next week after a judge there found that the program is probably unconstitutional. Anna Smith, a nurse in Idaho who contends the program is unconstitutional and that bulk record collection violates her privacy rights, will soon have her appeal heard by the appeals court in the 9th Circuit.
Separately, a Somali cab driver convicted in California of funneling money to a terror group is now challenging a phone records program the government says was vital for his prosecution.
Any court opinion before Congress takes action could influence the lawmakers’ debate. Congress could also act first, but even if it clears up disputes about the government’s statutory authority to collect bulk records, courts might still be left confronting constitutional questions.
Besides those cases, multiple defendants notified in the past year that the Justice Department had obtained NSA-derived evidence against them are now challenging the government.
At issue is a provision of the Foreign Intelligence Surveillance Act known as Section 702, which allows the government to collect communications of non-Americans located outside the U.S. for counterterrorism purposes. The program also sweeps up communications of U.S. citizens who have contact with overseas terror suspects.
The Justice Department for the first time last year began notifying individual defendants that it had gathered evidence against them through warrantless surveillance, setting the stage for legal challenges.
A judge in Oregon rejected an effort by Mohamed Mohamud, a Somali-American convicted of plotting to detonate a bomb at a Christmas tree-lighting ceremony, to suppress such evidence and sentenced him to 30 years in prison, though that issue will likely resurface on appeal.
A similar defense request is pending in the Colorado case of Jamshid Muhtorov, who is charged with trying to provide material support to an Uzbek terror organization and wants information about the government’s surveillance methods so he can challenge their legality. In Chicago, a man charged with trying to ignite a bomb outside a bar is scheduled for trial next year after fighting unsuccessfully to see secret intelligence-court records.
Albanian citizen Agron Hasbajrami, who earlier admitted trying to go to Pakistan to join a radical jihadist insurgent group, recently withdrew his guilty plea in New York following the government’s notification of how it obtained evidence in his case.
Congressional supporters of limiting surveillance see an urgent need for action, and say changes are better addressed through legislation than litigation.
A critical deadline is June 1, 2015, when the section of law authorizing the bulk records collection is set to expire. If no action is taken before then, that could lessen the chances of a Supreme Court review. Congress may also wind up acting first, which could resolve some of the outstanding statutory issues.
The ACLU’s Jaffer said he hopes that Congress will overhaul the program but that courts also have a natural role to play.
“To the extent that Congress is authorizing mass surveillance of Americans’ telephone calls, the Constitution has something to say about that — and only the courts are in a position to enforce the Constitution,” he said.
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