The nation’s surveillance court this month faced for the first time the issue of whether the newly minted USA Freedom Act requires that a technical expert be appointed in a case involving a novel or significant issue, and the court ruled that it doesn’t.
Judge F. Dennis Saylor of the Foreign Intelligence Surveillance Court said in a decision released Friday that no advocate is required to present an opposing view to the government’s if the legal conclusion is “obvious.”
At issue was a technical question involving the legislation, which passed June 2 and amended Section 215 of the USA Patriot Act to end the government’s bulk collection of Americans’ phone records. The act also directed that the court, which typically hears only the government’s side of surveillance cases, appoint “amicus curiae” or a panel of technical experts to offer an alternative perspective in “novel” or “significant” cases.
Section 215 — initially passed in October 2001 after the Sept. 11, 2001, attacks on the United States — expired June 1. A divided Congress voted to extend and revise the law a day later. President Obama signed it that evening.
The question before the court: Did the new law effectively reinstate the language of Section 215 that existed before the June 1 sunset? Or did Congress’s missing of the deadline by one day mean the law reverted to what it was before the Patriot Act passed in 2001?
The answer to that question determines whether the National Security Agency can resume — for a six-month transition period — the bulk collection of phone records while the agency works out a handoff of the program to the phone companies.
If the collection, which ceased June 1, is not restarted, Saylor stated, “that will have a substantial effect on the intelligence-
gathering capabilities of the government.”
He conceded the issue was “significant” and said it was “likely ‘novel,’ ” as it has not been addressed by any court before. The appointment of an expert would thus appear to be “required,” he said. But, he said, that should not include cases in which “the legal question is relatively simple.”
In this case, he said, Congress clearly intended that the USA Freedom Act restore Section 215 and other expiring provisions to read “as they did immediately before June 1.”
To interpret the law any other way, he said, would be “superfluous, if not nonsensical.”
In practical terms, the ruling suggests that the court would approve — if it has not already — the government’s resumption of bulk collection for the transition period. The administration has said it will announce any resumption. So far it has not.
Some privacy advocates raised their eyebrows at Saylor’s decision. “I’m inclined to agree that this particular question is a no-brainer,” said Julian Sanchez, a senior fellow at the Cato Institute. “But I’m a little worried. If the point is to ensure the court is hearing a different perspective, whether the [amicus provision] kicks in shouldn’t depend on whether an issue seems obvious before the court has heard any counter arguments.”