In a rare move, the privacy group the Electronic Privacy Information Center says that it will file an emergency petition directly with the Supreme Court asking it to block the NSA's surveillance program, which the group says has created “exceptional circumstances” requiring an appeal straight to the high court.
The New York Times reports:
The group, based in Washington, also 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.
In its petition, the group said the FISA court had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”
Over the weekend, the Times' Eric Lichtblau also reported on how the FISA court has broadly expanded the power of the NSA by creating "a secret body of law" by "regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny." The FISA court, which authorizes domestic surveillance programs, is made up of 11 federal district court judges, who are appointed by Chief Justice John Roberts and serve on a rotating basis.
As the Wall Street Journal reports, the NSA's ability to collect data on Americans is based on the FISA court's interpretation of what information could be considered "relevant" to an investigation. From the Journal:
The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent.
But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings. According to the court, the special nature of national-security and terrorism-prevention cases means "relevant" can have a broader meaning for those investigations, say people familiar with the rulings.
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