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The NSA Has Pissed Off the Entire World—Will the Supreme Court Intervene?

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Posted on Nov 1, 2013
AP/Patrick Semansky

The National Security Administration (NSA) campus in Fort Meade, Md.

By Bill Blum

(Page 2)

Although EPIC acknowledges that the NSA’s surveillance powers were expanded in 2001 with the passage of the Patriot Act and by subsequent amendments ratified in 2008 and 2012, it maintains that nothing in the initial or current legislation allows the NSA to access records of every phone call every American makes or receives.

Immediate review of the Verizon order under the Supreme Court’s original jurisdiction is needed, EPIC continues, because other than the Justice Department and Internet and telecom companies served with FISA court orders, no other parties are permitted to appear before a FISA court judge to challenge an NSA surveillance application. And other than the Supreme Court, no federal or state judicial body has jurisdiction to review and rescind orders like the one handed to Verizon.

In a lengthy opposition brief that would make Orwell and Kafka blush, Solicitor General Donald B. Verrilli Jr., speaking on behalf of the Obama administration, argues that the legality of the metadata surveillance program can no longer be questioned because 14 FISA court judges sitting in secret on 34 separate occasions have considered the program and issued orders like the one served on Verizon. In Verrilli’s view, that many judges simply can’t be wrong.

On the question of jurisdiction, Verrilli agrees with EPIC that only the feds or affected companies may seek appellate review of metadata orders. But he arrives at the opposite conclusion—that such limitations require the Supreme Court to dismiss EPIC’s petition rather than take up the case on its merits.

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And so the legal table has been set. Will the nation’s highest court agree to examine the work of a spy agency run amok, or will it once again, as it did in the Clapper case, decide to stay out of the fight and grant Verrilli’s motion to dismiss? Despite the urgency of the issue and notwithstanding EPIC’s great and courageous work, the smart money still favors the latter.


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