A privacy rights group intends to use an emergency petition Monday to ask the Supreme Court to put the brakes on the National Security Agency's domestic surveillance program that collects the telephone records of millions of Americans, according to The New York Times.
The Electronic Privacy Information Center is taking what the newspaper calls "the extraordinary legal step of going directly to the Supreme Court" because, the EPIC will contend, the phone records program has made for "exceptional circumstances" that only the nation's highest court can address.
According to the Times, the Washington-based EPIC "said it was taking its case to the Supreme Court because it could not challenge the legality of the N.S.A. program at the secret court that approved it, the Foreign Intelligence Surveillance Court, known as the FISA court, and because lower federal courts did not have the authority to review the secret court's orders."
The suit is the latest in a series of legal challenges to the N.S.A.'s domestic spying operations that have been lodged since leaker Edward Snowden revealed the programs' existence.
The Times quotes EPIC Executive Director Marc Rotenberg as saying his group's lawsuit would be the first to directly challenge the FISA's legal authority to OK the phone records' collection under the Patriot Act.
Alan Butler, a lawyer for the group, told the Times the FISA judge "lacked the authority to require production of all domestic call detail records."
The newspaper notes that the latest "challenges come after the failure of a legal campaign against the N.S.A.'s domestic spying operations during the administration of President George W. Bush. A series of lawsuits were brought against an N.S.A. program of wiretapping without warrants soon after the existence of the program was revealed by The New York Times in December 2005."
The FISA court was created in Congress in 1978 to provide more oversight of foreign government surveillance. In recent years, however, the FISA court has taken on much more expansive authorities, becoming "almost a parallel Supreme Court," the New York Times reported. Citing unnamed former and current national security officials, the Times reports that the court has established a body of law relating not only to the tracking of terrorist suspects but also people involved in espionage, cyberattacks and nuclear proliferation.
For instance, the Wall Street Journal reports, the FISA court expanded the NSA's reach over phone records in national security cases by establishing a new legal interpretation of the word "relevant" in the Patriot Act. When the Patriot Act was up for reauthorization in 2005 and 2006, some lawmakers tried but failed to establish stricter standards for data collection.
Unlike the Supreme Court, the FISA court issues rulings without hearing anyone's side but the government's, and its rulings are generally kept secret. The court's 11 judges are all federal district court judges, chosen by Supreme Court Chief Justice John Roberts to serve on the FISA court.