The (non-) effect of the Patriot Act’s sunset clause

Memorandum Opinion, BR 15-77, 15-78 (FISC June 17, 2015)

This Opinion holds that the Sunset Clause of the Patriot Act, Section 102(b)(1), does not prevent the FISC from reauthorizing the NSA’s bulk telephony metadata program. The Sunset Clause provided that the business records provision, 50 U.S.C. 1861, which the FISC had used to authorize the NSA telephony metadata program since 2006, would revert to its pre-Patriot Act form if Congress did not act by June 1, 2015. Congress did not enact the USA Freedom Act (the “Act”), however, until June 2.

On June 11, 2015, the government asked the FISC to reauthorize the bulk telephony metadata program. Although the government relied on Section 109 of the Act’s provision of 180 days for the Act’s restrictions on the government’s authority under Sec. 1861 to come into effect, the pre-Patriot Act version of Section 1861 did not authorize the collection of telephony metadata. If, as per the Patriot Act’s Sunset Clause, the pre-Patriot version of Section 1861 was in effect when the USA Freedom Act was enacted, Section 109 would not permit the FISC  to reauthorize the NSA’s bulk collection of telephony metadata during the 180-day interim.

In rejecting this challenge, FISC Judge F. Dennis Saylor IV reasoned that Congress had reinstated the Patriot Act version of Section 1861 by changing the date of the Sunset Clause to December 15, 2019 in Section 705 of the USA Freedom Act.  Further, he reasoned that the prohibitions of bulk collection of telephony metadata in Sections 101-103 of the Act would make no sense unless Congress had assumed that the Patriot Act version of Section 1861 was in effect and would so remain until 180 days after the Act’s enactment.

Notably, Judge Saylor refused to appoint amicus curiae to aid him in deciding this issue, even though Section 401 of the USA Freedom Act, as codified in 50 U.S.C. Sec. 1803(i)(2)(A), requires that amicus curiae be appointed for “the consideration of any order or review that, in the opinion of the [FISA] court, presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is not appropriate.” Judge Saylor found that the legal issue of the effect of the Patriot Act’s Sunset Clause on reauthorization of the bulk telephony metadata program was both “significant” and “novel.” Nonetheless, he refused to appoint amicus curiae based on the Act’s proviso that appointment is not required if the FISC finds it inappropriate. According to the judge, the circumstances where it would be inappropriate to appoint amicus curiae to aid in resolving “a novel or significant interpretation of the law” “[a]t a minimum … would include situations where the court concludes that it does not need the advice or assistance of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonable or rational outcome.” At 5 (footnote omitted). This interpretation of the proviso seems at odds, however, with the American legal system’s fundamental assumption that adversarial presentation is necessary because it may bring the grave flaws in seemingly obvious legal positions to light.

 

Leave a Reply