"A drastic expansion of the word 'relevant'"

A federal appeals court has ruled that the National Security Agency program to collect information on billions of telephone calls made or received by Americans is illegal.

In an opinion issued Thursday, a three-judge panel from the New York-based 2nd Circuit U.S. Court of Appeals held that a law Congress passed allowing collection of information relevant to terrorism investigations does not authorize the so-called “bulk collection” of phone records on the scale of the NSA program. The judges did not address whether the program violated the Constitution.

Writing for a unanimous panel, Judge Gerard Lynch said allowing the government to gather data in a blanket fashion was not consistent with the statute used to carry out the program: Section 215 of the PATRIOT Act.

“The interpretation urged by the government would require a drastic expansion of the term ‘relevance,’ not only with respect to § 215, but also as that term is construed for purposes of subpoenas, and of a number of national security-related statutes, to sweep further than those statutes have ever been thought to reach,” Lynch wrote in an opinion joined by Judges Robert Sack and Vernon Broderick.


“The interpretation that the government asks us to adopt defies any limiting principle. The same rationale that it proffers for the ‘relevance’ of telephone metadata cannot be cabined to such data, and applies equally well to other sets of records,” Lynch added. “If the government is correct, it could use § 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including email and social media information) relating to all Americans.”

The 2nd Circuit, which acted on a lawsuit brought by the American Civil Liberties Union, is the first appeals court to rule on the legality of the telephone metadata program that came to light after leaks from former NSA contractor Edward Snowden. The program was repeatedly authorized by a special intelligence court in Washington. Two other federal appeals courts are currently considering similar challenges.

Passage of USA F-ReDux would also likely moot at least the challenges to the phone dragnet (there are cases before the 2nd, 9th, and DC Circuits right now, as well as a slightly different challenge from EFF in Northern California). That’s important because these challenges — particularly as argued in the 2nd Circuit — might get to the underlying “relevant to” decision issued by the FISC back in 2004 [it did ... d], as well as the abuse of the 3rd party doctrine that both bulk and bulky collection rely on. That’s important because USA F-ReDux not only does nothing about that “relevant to” decision, it relies on the language anew in the new chaining provision.

The bill would probably also moot a challenge to National Security Letter gag orders EFF has.

After months of persistent digging, Hersh had unearthed a new case of the imperial presidency's abuse of secrecy and power: a "massive" domestic spying program by the Central Intelligence Agency (CIA). According to Hersh, the CIA had violated its charter and broken the law by launching a spying program of Orwellian dimensions against American dissidents during the Vietnam War. The Times called it "son of Watergate."

These revelations produced a dramatic response from the newly energized post-Watergate Congress and press. Both houses of Congress mounted extensive, year-long investigations of the intelligence community. These highly publicized inquiries, headed by experienced investigators Senator Frank Church and Congressman Otis Pike, produced shocking accusations of murder plots and poison caches, of FBI corruption and CIA incompetence. In addition to the congressional inquiries, the press, seemingly at the height of its power after Watergate, launched investigations of its own. The New York Times continued to crusade against CIA abuses; the Washington Post exposed abuses and illegalities committed by the FBI; and CBS's Daniel Schorr shocked the nation by revealing that there might be "literal" skeletons in the CIA closet as a result of its assassination plots.

In this charged atmosphere, editorial writers, columnists, political scientists, historians, and even former officials of the CIA weighed in with various suggestions for reforming an agency that many agreed had become a ''monster.'' Several policymakers, including presidential candidates Fred Harris and Morris Udall, called for massive restructuring or abolition of the CIA. Media and political pundits suggested banning CIA covert operations; transferring most CIA functions to the Pentagon or the State Department; or, at the very least, devising a new, strict charter for all members of the intelligence community.

Few barriers seemed to stand in the way of such reforms. The liberal, post-Watergate Congress faced an appointed president who did not appear to have the strength to resist this "tidal shift in attitude," as Senator Church called it. Change seemed so likely in early 1975 that a writer for The Nation declared "the heyday of the National Security State', to be over, at least temporarily.

But a year and a half later, when the Pike and Church committees finally finished their work, the passion for reform had cooled. The House overwhelmingly rejected the work of the Pike committee and voted to suppress its final report. It even refused to set up a standing intelligence committee. The Senate dealt more favorably with the Church committee, but it too came close to rejecting all of the committee's recommendations. Only last-minute parliamentary maneuvering enabled Church to salvage one reform, the creation of a new standing committee on intelligence. The proposed charter for the intelligence community, though its various components continued to be hotly debated for several years, never came to pass.

The investigations failed to promote the careers of those who had inspired and led them. Daniel Schorr, the CBS reporter who had advanced the CIA story at several important points and eventually had become part of the story himself, was investigated by Congress, threatened with jail, and fired by CBS for his role in leaking the suppressed Pike report. Seymour Hersh's exposes were dismissed by his peers as "overwritten, over-played, under-researched and underproven." Otis Pike, despite the many accomplishments of his committee, found his name linked with congressional sensationalism, leaks, and poor administration. Frank Church's role in the investigation failed to boost his presidential campaign, forced him to delay his entry into the race, and, he thought, might have cost him the vice presidency.

The targets of the investigation had the last laugh on the investigators. 'When all is said and done, what did it achieve?' asked Richard Helms, the former director of the CIA who was at the heart of many of the scandals unearthed by Congress and the media. 'Where is the legislation, the great piece of legislation, that was going to come out of the Church committee hearings ? I haven't seen it.' Hersh, the reporter who prompted the inquiries, was also unimpressed by the investigators' accomplishments. 'They generated a lot of new information, but ultimately they didn't come up with much,' he said."