NEW YORK, N.Y. – A lawyer defending the government’s bulk collection of millions of Americans’ telephone records found himself facing tough questions Tuesday from appeals judges wanting to know whether the program will inevitably lead to, as one judge put it, the government’s study of “every American’s everything.”
Questions about the scope of the program arose frequently during arguments before the 2nd U.S. Circuit Court of Appeals in Manhattan.
After nearly two hours of arguments, the court reserved decision on the American Civil Liberty Union’s appeal of a December ruling giving a green light to the National Security Agency program on the grounds that it was necessary extension to security measures taken after the Sept. 11, 2001, terror attacks. A 2nd Circuit ruling is likely months away.
Even the judges acknowledged the issue will probably be decided by the Supreme Court.
Circuit Judge Robert Sack noted that a judge in Washington, D.C., had ruled the other way, blocking the collection of phone records of two men who had challenged the program. Sack asked ACLU attorney Alex Abdo if the 2nd Circuit should issue its ruling but stay its effect if it sides with the ACLU until the Supreme Court has an opportunity to speak.
“Supposing we’re wrong and somebody blows up a subway train?” he asked.
Judge Gerard Lynch asked Assistant Attorney General Stuart F. Delery why the program would not be extended to collect the bank and credit card records of Americans.
“What’s so special about telephone records that makes them so valuable, so uniquely interactive or whatever, that the same arguments you’re making don’t apply to every record in the hands of a third party business entity of every American’s everything?” Lynch asked.
The judge questioned why the government didn’t “collect everything there is to know about everybody and have it all in one big government cloud.”
“C’mon,” he added, “isn’t it at least as relevant to you whether somebody that you had some reasonable suspicion is engaged in terrorist connections used his credit card last week to buy a ton of fertilizer as it is to find out whether he called his gym using his Verizon cellphone or even to find out who his other colleagues are?”
District Judge Vernon Broderick, sitting by designation on the appeals court, also questioned why the government wouldn’t store everyone’s banking records.
Delery, though, said all records are not the same and analysis of the phone records enables law enforcement to make speedy determinations when a terrorist is reaching out to others. Other records, he said, are more useful when law enforcement agencies are looking back at a crime to determine who carried it out.
“The purpose of the bulk collection is to allow for the use of analytic tools in counterterrorism investigations,” he said.
Delery said the phone records are most useful in a probe that is “designed to be forward-looking.”
“The purpose of the work is to detect and disrupt future plots before an attack can be made,” he said.
Secret NSA documents were leaked to journalists last year by contractor Edward Snowden, revealing that the agency was collecting phone records and digital communications of millions of citizens not suspected of crimes and prompting congressional reform. Snowden remains exiled in Russia.