The Center for National Security Studies’ participation

Judge McLaughlin’s opinion was issued on October 18, 2013, despite a letter that the Center for National Security Studies (“the Center”) submitted to Presiding Judge Walton on September 25, 2013, in response to the publication of Judge Eagan’s opinion. The Center requested that the FISC not reauthorize the telephony metadata program until the government submitted a full public record of its grounds for believing the program was legal. In addition, the Center requested that interested parties be allowed to submit amicus curiae briefs, and that the question of the legality of the telephony metadata program be decided en banc by the entire FISC Court.

On October 9, Judge McLaughlin ruled that the Center needed to re-submit its request as a formal motion, and the Center submitted a formal motion on October 17. Noting that the Office of the Director of National Intelligence had stated that the FISC had reauthorized the telephony metadata program on October 11, the Center requested reconsideration of and briefing on that ex parte order. Alternatively, the Center requested that the FISC establish a schedule ensuring that before the next 90-day reauthorization expired, there would be sufficient time for the public submissions by the government, briefing by amici, and en banc consideration of the legality of the telephony metadata program that it had requested by letter on September 25.

On December 18, Judge McLaughlin granted the Center’s motion only to the extent of allowing it to file an amicus brief that would argue, as per its request, that (i) the telephony metadata program contravened the structure and limitations of Section 215 and FISA as a whole, (ii) the program did not meet the relevance requirement of Section 215, and (iii) in extending Section 215 from May 2011 to June 2015, Congress had not enacted the FISC’s interpretation of that provision. Reasoning, however, that “[a] nonparty cannot circumvent Article III standing requirements, and gain control of a case equal to that of a real party of interest, by filing an amicus curiae brief,” Judge McLaughlin ruled that the Center did not have standing to seek en banc review or to request reconsideration of her October decision granting the government’s request for bulk telephony metadata. The judge further ruled that the Center would be able to file its brief only in a miscellaneous docket accessible to any FISC judge, rather than in the same docket as a specific government application. Manifesting a lack of concern with the non-adversarial and secretive nature of FISC proceedings, Judge McLaughlin wrote that, “Congress has mandated that the Court’s review of a Section 1861 proceeding be ex parte. In view of that mandate, the Center will not have access to the government’s application or other docket proceedings. …[I]nformation already made available to the public, including opinions of this Court, provides sufficient context for the Center to brief the issue specified herein.

On April 3, 2014, the Center filed an amicus brief arguing that the telephony metadata program was not statutorily authorized under Sec. 215 and that Congress’s reauthorization of Sec. 215 in 2011 did not ratify the FISC’s interpretation that that section authorized the program. The Center noted, in its brief, that despite stating on March 27 that “the government should not collect or hold [meta]data in bulk,” President Obama directed the Department of Justice to seek the reauthorization that the FISC granted on March 28 of the government’s authority to collect and hold bulk telephony metadata. The Center urged that because “[m]ore such extension requests are possible, … the question whether Section 501 [of FISA, otherwise known as Section 215 of the Patriot Act] authorizes the NSA’s bulk collection of telephony metadata remains legally important.”

After the USA Freedom Act was passed on June 2, 2015 with 180 days from enactment for its prohibitions of bulk collection of telephony metadata to come into effect, the Center for National Securities Studies responded to the government’s application for renewed bulk collection by asking the FISC to consider the amicus brief that it had filed on April 3, 2014. Despite granting the Center’s request and also considering statutory and constitutional objections raised by amici Kenneth T. Cuccinelli, II and Freedom Works, Inc. (Motion in Opposition, Misc. 15-01 (June 5, 2015); Movant’s Supplemental Brief, Misc. 15-01 (June 12, 2015)), on June 29, 2015, the FISC reauthorized the bulk collection of telephony metadata until August 28 (Primary Order, BR 15-75; Opinion and Order, BR 15-75, Misc. 15-01).

Leave a Reply