The U.S. Court of Appeals for the District of Columbia has overturned an injunction issued by a lower court against the National Security Agency’s controversial bulk collection program, ruling that the plaintiff did not have standing in the case unless he could prove he had been spied on.
The program collects a massive, but technically unknown, amount of telephone data and stores it in a government database. Former NSA contractor Edward Snowden revealed the controversial program in 2013, shortly after James Clapper famously lied about during a Senate hearing.
Asked by Sen. Ron Wyden, D-Ore., if federal agencies engaged in bulk data collection, Clapper responded, “Not wittingly.”
But even if the Friday court ruling stands in the ongoing case, the NSA program won’t last long. It was temporarily reauthorized when Congress passed the USA Freedom Act in June, but that law put an expiration date on it for Nov. 29.
The goal was to give the government a transition period to a new program that will have the phone companies store the data, and the NSA will need a court order to access it.
According to the Appeals Court, plaintiff Larry Klayman had no standing in the case because he hadn’t shown he was personally affected by the NSA program.
“The record, as it stands in the very early stages of this litigation, leaves some doubt about whether plaintiffs’ own metadata was ever collected,” wrote Judge Janice Brown, who was appointed to the court by President George W. Bush. Because a plaintiff must show a “concrete and particularized” injury, Brown wrote, Klayman could not prove he had suffered as a result of any spying that may or may not have taken place.
Brown also said that she objected to the lower court’s opinion that Klayman had a “substantial likelihood of success on the merits.” Quoting the late Sen. Daniel Moynhihan, Brown wrote, “Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not ‘what the citizen may do’ but instead ‘what the citizen may know.'”
Brown summarized in saying, “Regulations of this sort may frustrate the inquisitive citizen but that does not make them illegal or illegitimate.”
Senior Circuit Judge Stephen Williams, a Reagan appointee, concurred with Brown in his own opinion. “Plaintiffs complain that the government should not be allowed to avoid liability simply by keeping the material classified,” Williams noted.
But the program’s efficacy, and the avoidance of liability, requires that it be kept a secret, Williams said. “The government’s silence regarding the scope of bulk collection is a feature of the program, not a bug,” he continued.
Senior Circuit Judge David Sentelle, another Reagan appointee who holds Supreme Court Justice Antonin Scalia’s former seat on the D.C. court, concurred with his colleagues but went even further. His colleagues voted to remand the decision back to the lower court, allowing plaintiffs to attempt to show standing in the future. Judge Sentelle said the decision should be overturned and vacated entirely.
“Plaintiffs never in any fashion demonstrate that the government is or has been collecting such records,” Sentelle ruled. Even if they could demonstrate it, Sentelle wrote, “Plaintiffs have not demonstrated that they suffer injury from the government’s collection of records.”
Julian Sanchez, a senior fellow at the libertarian Cato Institute, told the Examiner that the ruling wouldn’t have much practical effect, pointing out that the previous court’s preliminary injunction had applied specifically to the plaintiffs in the case, not to Americans in general, and that it had been stayed.
“The significance of the ruling is in reminding us that we have essentially established a system where even mass scale, data collection of overwhelmingly innocent people is effectively immunized from meaningful, adversarial constitutional review,” Sanchez said.
