Many cheered headlines declaring that a federal appellate court struck down an NSA bulk surveillance program Thursday, thinking it means the end of the massive spy program. It doesn’t. In fact, it provides yet more evidence that we cannot ever count on the federal government to limit itself.

From a practical standpoint, the ruling wasn’t nearly the victory many assumed. In fact, it set the stage to legitimize and continue indefinitely bulk collection of Americans’ phone records.

And from a constitutional standpoint  – well the court didn’t even bother to delve into those issues.

The 2nd U.S. Circuit Court of Appeals merely found that NSA program goes beyond what Congress authorized in § 215 of the Patriot Act. That leaves the door open for Congress to authorize it.

“We hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” the ruling reads. “We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well established legal standards.”

Take careful note of the second part of the above excerpt.  Congress has “every opportunity” to go ahead and authorize bulk surveillance. The court didn’t say Congress couldn’t create such a program. It just said it hasn’t.


And despite finding it illegal, the court refused to end the program “in light of the asserted national security interests at stake.”

That should give you some indication of the judges’ view of the constitutional privacy issues versus “national security.” This comes as no surprise. Federal courts almost always give the federal government the benefit of the doubt when it asserts national security concerns. When the feds yell, “Security!” it inevitably trumps your rights.

So, the ruling does nothing to end the bulk phone surveillance program. The court merely punted the ball back to Congress saying, “We deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape.”

The bottom line is that bulk surveillance will continue, at least the short-term. And if Congress specifically authorizes it, bulk surveillance will continue in the long-term.

“If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization,” the ruling said. “If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised.”

If Congress simply extends § 215 of the Patriot Act, the government will certainly appeal the Second Circuit ruling and bulk surveillance will continue at least until the Supreme Court renders an opinion.

And if Congress fails to do anything, and relevant sections of the Patriot Act expire in June, bulk surveillance will continue in the long-term under different authorities.

Pretty much any way you slice this, bulk surveillance of Americans’ phone records continues.

What about the constitutional issues? Other than calling the issue “complex,” the Second Circuit basically dodged the question. It boggles the mind that a federal court would write an opinion on a case that involves spying on virtually everybody in the United States and not consider the Fourth Amendment ramifications.  Yet we have this opinion void of any constitutional considerations.

Even if the court’s opinion was more substantive, it apparently doesn’t matter to many establishment Republicans seeking to extend and even expand NSA spy authority. The Second Circuit’s ruling did nothing to slow the roll of Republican Senate leadership. Sen. Mitch McConnell indicated that it would move ahead with reauthorization of § 215 despite the ruling.  As Dustin Volz and Laruen Fox of the National Journal put it, “To McConnell and his cohort, the ruling will not change their strategy: to renew the Patriot Act and oppose virtually any reform to the government’s sweeping surveillance program.”

Senate Majority Whip John Cornyn blew off the court’s opinion completely.

“It strikes me as an outlier.”

The claims of some Republican surveillance hawks bordered on absurd. Sen. Pat Roberts of Kansas basically said if the NSA can’t spy on everybody in America, you will probably die.

“I think everybody is a privacy hawk, but it is a balance between our national defense. You don’t have privacy if you’re dead,” he said.

Judging by the rhetoric flowing down Capitol Hill, it seems highly unlikely any of the various reform proposals will make it out of Congress.

This court ruling was no victory. It won’t end bulk surveillance. It doesn’t address the constitutional issues. And it actually sets the stage for more spying.

Once again, we find that the federal government pretty useless when it comes to limiting the power of the federal government.

Mike Maharrey

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