The Supreme Court Rejected an Early Challenge to the NSA

This morning, the US Supreme Court rejected without comment one of the earliest challenges to the NSA's broad spying activities. The petition made by the advocacy group Electronic Privacy Information Center (EPIC) was something of a longshot, but only because the secretive nature of the court overseeing the NSA required an unusual legal request.

EPIC's petition was filed back in July, and attempted to limit decisions by the Foreign Intelligence Surveillance Court (FISC)—the secret court overseeing the NSA—to allow broad data collection programs. The key question raised was whether or not FISC "exceeded its narrow statutory authority to authorize foreign intelligence surveillance … when it ordered Verizon to disclose records to the National Security Agency for all telephone communications 'wholly within the United States, including local telephone calls.'"

In June, the revelation that Verizon had been ordered to hand over millions of phone records to the NSA was the first piece of what's become a half year's worth of eye-opening leaks, and remains a point of major contention as it involves surveillance activities in the United States, which had previously been thought to be off-limits to the NSA. However, as we've since learned, vague wording in the Patriot Act has allowed FISC to approve bulk data collection with little oversight.

Because FISC is a secret court that only accepts challenges from the government or those who receive orders from the court. As EPIC argued that, as a Verizon customer, its rights were being infringed upon, but as it wasn't directlly involved in the orginal ruling, it is unable to challenge the court directly. Thus it took the somewhat unusual—but warranted, for lack of other options—step of requesting the Supreme Court to order FISC judges to vacate their Verizon ruling.

As Lyle Denniston at SCOTUSblog explains, "the Court very rarely grants such a 'writ of mandamus or prohibition,'" often preferring instead to let courts wind their way up through lower court systems. That was a line parroted by the Justice Department, which responded to EPIC's petition by saying, per Denniston, that "that EPIC could attempt to pursue its case in lower courts first, although the government has attempted to thwart court review of challenges like that already filed."

EPIC's bid to force FISC to overturn its ruling may have been unusual, but was wholly required by the extremely limited paths by which FISC rulings can be challenged. While the Supreme Court rejected the petition without comment—standard practice for the court—it does suggest that any court challenges to FISC are going to have to take the years-long route through lower courts before hitting the Supreme Court again.

Those cases are already being heard. Today, former Reagan administration lawyer Larry Klayman will argue in a district court for preliminary injunctions against government spying programs. And later this week, the ACLU will argue for similar injunctions, as well as argue that the Patriot Act can't authorize such activities, as they violate First and Fourth Amendment protections. That's not to mention the aggressive transparency campaigns being led by the likes of Google and other tech companies implicated in the NSA's surveillance programs.

Still, all cases revolve around FISC, whose incredible rulings are subject to little, if any, counter-arguments and even less oversight. Plus, its attempts to explain its rulings have only resulted in its revealing that it knew the NSA was lying constantly in its arguments, and yet approved its requests anyway. The utter lack of challenge to any of these activities—as well as the ongoing inability of outside observers to challenge the court—remains appalling.

@derektmead