The
Foreign Intelligence Surveillance Court ruled late Monday that the National
Security Agency may temporarily resume its once-secret program that
systematically collects records of Americans’ domestic phone calls in bulk.
The program
had lapsed on June 1, when a law on which it was based, Section 215 of the
U.S.A. Patriot Act, expired. Congress revived that provision on June 2 with a
bill called the U.S.A. Freedom Act, which said that the provision could only be
used for bulk collection for six months .
The
six-month period was intended to give intelligence agencies time to move to a
new system in which the phone records would stay in the hands of phone
companies, though the agency could still gain access to them.
Shortly
before Congress passed the U.S.A. Freedom Act, the United States Court of
Appeals for the Second Circuit, in New York, ruled that Section 215 could not
legitimately be interpreted as permitting bulk collection at all.
Congress did
not add anything to the bill contradicting the Second Circuit ruling, leaving
it unclear whether the program could resume in the interim. As soon as
President Obama signed the bill, his administration applied to restart the
program for six months.
In a 26-page
opinion Judge Michael W. Mosman said that the Second Circuit was wrong and that
the program could resume.
“Second
Circuit rulings are not binding on the F.I.S.C., and this court respectfully
disagrees with that court’s analysis, especially in view of the intervening
enactment of the U.S.A. Freedom Act,” he wrote.
In any
event, Judge Mosman added, the passage of the bill was evidence that Congress
had intended to allow bulk collection to continue for six months.
Judge
Mosman, who normally serves in the Federal District Court for the District of
Oregon when not serving on the spy court, also rejected a challenge to the
program by Ken Cuccinelli, the former attorney general of Virginia, who said
that it was illegal.
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