Tuesday, September 17, 2013 8:17 pm
FISA judge: no challenges to phone records orders
By FREDERIC J. FROMMERAssociated Press
The opinion by Foreign Intelligence Surveillance Court Judge Claire Eagan, made public Tuesday, spells out her reasons for reauthorizing the phone records collection "of specified telephone service providers" for three months.
The collection program, which the government says is authorized under Section 215 of the Patriot Act, was disclosed by former National Security Agency systems analyst Edward Snowden, provoking a heated debate over civil liberties.
Eagan had asked that her Aug. 29 opinion be made public "because of the public interest in this matter," and on Tuesday, the presiding judge of the FISA Court, U.S. District Judge Reggie Walton, ordered that the opinion be published. Portions of the opinion were blacked out.
"To date, no holder of records who has received an order to produce bulk telephony metadata has challenged the legality of such an order," wrote Eagan, who also serves on the U.S. District Court for the Northern District of Oklahoma, to which she was appointed by President George W. Bush. "Indeed, no recipient of any Section 215 order has challenged the legality of such an order, despite the explicit statutory mechanism for doing so."
She wrote that under Section 215 Congress provided for judicial review of FISA Court orders - first to the FISA Court of Review and, ultimately, to the U.S. Supreme Court. That provides for a "substantial and engaging adversarial process to test the legality of this court's orders under Section 215."
Eagan also concluded that the collection of phone records does not violate the Constitution's Fourth Amendment, which prohibits unreasonable search and seizure.
Verizon and T-Mobile US declined to comment on the opinion. AT&T and Sprint didn't return messages seeking comment.
The names of the companies the government is seeking the phone records from is blacked out in both the opinion and order.
In another NSA data-collection program, PRISM, Yahoo is seeking to declassify a 2008 secret court order that required the company to turn over customer data to the government. In a filing with the court this year, Yahoo said disclosure of the opinion and briefs would allow the company to "demonstrate that it objected strenuously to the directives that are now the subject of debate, and objected at every stage of the proceeding," but that its objections were overruled. The Justice Department said last week it would declassify parts of that order.
Eagan also stressed in her opinion that prior to Congress reauthorizing Section 215 in 2011, the executive branch provided the intelligence committees of both the House and the Senate with detailed information about how the FISA Court was approving bulk telephone collection under the section. She said the executive branch worked with congressional committees to make sure that each member of Congress knew, or had the opportunity to know, how Section 215 was being implemented under the court's orders.
In a statement, Director of National Intelligence James R. Clapper said the opinion "affirms that the bulk telephony metadata collection is both lawful and constitutional. The release of this opinion is consistent with the president's call for more transparency on these valuable intelligence programs."
But Jameel Jaffer, deputy legal director of the American Civil Liberties Union, said that as a defense of the phone records collection program, the opinion is "completely unpersuasive."
Associated Press writer Stephen Braun contributed to this report.
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