The Obama administration, relying largely on procedural arguments, has urged the Supreme Court to pass up its first opportunity to rule on the legality of the government’s global electronic surveillance of telephone and digital contacts.  In a brief filed late Friday and made available today, government lawyers argued that the Court lacks authority to rule on the dispute at this point.

The Electronic Privacy Information Center, an advocacy group that claims it has been targeted by the National Security Agency’s broad data-collection program, has asked the Court to rule that the agency has gone beyond its authority to monitor foreign intelligence communications, and thus the Justices should order an end to the program.  That group, Solicitor General Donald B. Verrilli, Jr., argued in the new opposing brief, does not have a legal right to be pursuing its challenge directly in the Supreme Court, and should instead sue in lower courts, as other challengers have done.

EPIC’s challenge is one of several — but, so far, the only one to start out in the Supreme Court rather than in a lower court — that have grown out of the leaks by former NSA staffer Edward Snowden.  Among the secret documents Snowden released was a copy of a previously secret order by a judge of the specialized Foreign Intelligence Surveillance Court requiring the Verizon telephone network to turn over vast files on telephone exchanges.  Because of the sweep of that order, EPIC — a Verizon customer — contended that its telephone connections have been swept up by the NSA.  The FIS Court operates largely in secrecy, and only government lawyers appear before it in one-sided pleas for surveillance permission.

Arguing that no lower court would have the authority to rule upon the legality of that FISC order, EPIC took its plea directly to the Supreme Court.  Its filing in July asked the Court to rule that the FIS Court has wrongly claimed authority for its global data-gathering under a 2001 federal law.  That law gave the FIS tribunal the power to issue electronic surveillance orders to produce “tangible things” during an investigation of potential threats to national security.

EPIC asked the Supreme Court either to vacate the FIS Court order to Verizon or to bar its further enforcement, contending that the compelled “production of millions of domestic telephone records . . . cannot plausibly be relevant to an authorized investigation” of potential terrorist activities.

Government lawyers had until last Friday night to respond to the EPIC petition.  The brief said it was doubtful that EPIC had any right to pursue its claim in the Supreme Court, since the law setting up the FIS Court system only allows the federal government itself or an outside group that has received a data-collection demand to appeal an FISC order under the 2001 law.

Moreover, the brief asserted, the kind of legal orders that EPIC has asked the Justices to issue amount to “a drastic and extraordinary remedy,” and EPIC had not satisfied the demanding requirements for pursuing such a remedy.  Further, the government contended, EPIC has not offered proof that it could satisfy the requirements of the Constitution’s Article III as a party with a specific claim to an injury as a result of government action.

The law creating the secret FISC, the brief added, does not give a third party like EPIC the right to enforce any legal protection that might be available under the 2001 law.

Although the brief suggested that EPIC should have pursued the alternative of a lawsuit in lower federal courts, the document also said that the government would mount some defenses to the actual pursuit of that kind of challenge.  Presumably, that would mean both procedural and substantive objections to allowing EPIC to proceed — such as the “state secrets” doctrine that the federal government has often used to shield itself from cases potentially affecting national security.

EPIC will have a chance to reply to the government brief, before the Justices consider whether to hear the case.  After the reply is filed, the Court will then schedule the challenge at a future private Conference.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. opposes challenge to NSA spying, SCOTUSblog (Oct. 15, 2013, 11:04 PM), http://www.scotusblog.com/2013/10/u-s-opposes-challenge-to-nsa-spying/