Secret spy court calls collection of phone data legal

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WASHINGTON -- The Foreign Intelligence Surveillance Court on Tuesday offered its most extensive public explanation for why it has allowed the government to keep records of all Americans' phone calls, releasing a previously classified opinion in which it said the program was constitutional and did not violate Americans' privacy rights.

While the once-secret call log program has been periodically reapproved by the court since 2006, it has come under criticism from members of Congress of both parties and civil libertarians since its existence came to light in June after leaks by Edward J. Snowden, the former National Security Agency contractor.

In a 29-page opinion that quoted NSA Director Keith Alexander as saying the leaks had caused "significant and irreversible damage" to national security, Judge Claire V. Eagan, a federal judge in the Northern District of Oklahoma, declared that the program was lawful. So, she wrote, any decision about whether to keep it was a political question, not a legal one.

"This court is mindful that this matter comes before it at a time when unprecedented disclosures have been made about this and other highly sensitive programs designed to obtain foreign intelligence information and carry out counterterrorism investigations," she wrote. "In the wake of these disclosures, whether and to what extent the government seeks to continue the program discussed in this memorandum opinion is a matter for the political branches to decide."

The opinion by Judge Eagan -- a 2001 appointee of President George W. Bush assigned to the surveillance court by Chief Justice John G. Roberts Jr. this year -- also noted that no telecommunications firm had invoked its legal right to object to turning over its customers' calling records to the government.

The opinion, dated Aug. 29, was the first written since the program came to light. While other judges had routinely re-authorized the program every 90 days with only brief reiteration of the court's legal analysis, according to an official familiar with the still-classified rulings, Judge Eagan wrote the lengthier memorandum apparently for the purpose of public release.

She noted in her opinion that the court had previously reauthorized the program to continue for another three months July 19 after having held an "extensive hearing to receive testimony and evidence on this matter." In a footnote, she said only the government, not foes of the program, participated in the hearing, as is routine for such proceedings.

National Intelligence Director James R. Clapper lauded the opinion as one that "affirms that the bulk telephony metadata collection is both lawful and constitutional."

But American Civil Liberties Union senior attorney Jameel Jaffer called the opinion "completely unpersuasive," criticizing it for failing to mention a landmark privacy case the Supreme Court decided last year and portraying its statutory analysis as "equally weak."

The legal analysis Judge Eagan endorsed echoes basic arguments the Obama administration has made in defending the program since it came to light, including in an unsigned Justice Department "white paper" it released last month. Among those arguments was that phone call metadata -- phone numbers, time and duration of calls, but not content -- is not protected by Fourth Amendment privacy rights because it does not involve eavesdropping on the calls' contents.

nation


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