FreedomWorks Challenges the Transitional Dragnet

On Friday, FreedomWorks and Ken Cuccinelli challenged the phone dragnet.

The challenge is a basic legal challenge, not a technical one arising from the lapse of the dragnet. It is smarter than others I’ve read because it recognizes the dragnet is about backbone usage, not specific provider. It also has more language on contracting than other challenges I’ve read closely (though I haven’t read Rand Paul’s, and I expect that language was in his challenge).

But as I said, there’s nothing I saw in the challenge that questions how USA F-ReDux can simply extend Section 215 when that provision had already lapsed.

At the very least, because of this challenge, we’ll get to see what the government argued about that lapse. That’s because Michael Mosman (who signed the December dragnet order, but was also remarkably willing to review a challenge to FISA- and EO 12333-authorized methods in Reaz Qadir Khan’s case) not only ordered the government to brief whether ongoing dragnettery was legal under Title V of FISA as modified by USA F-ReDux by next Friday, but he ordered the government to turn over an unclassified version of the memorandum of law it submitted on June 2 to restart the dragnet.

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In addition to whatever else this says, it makes it clear that (unsurprisingly) the Administration filed to restart the dragnet on Tuesday night, just after the President signed USA F-ReDux.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
    • bloopie2 says:

      Yes. What is the significance of this action, in terms of FISC, in terms of third parties challenging things, in terms of Redux, etc. And why did the judge say “don’t discuss standing”? Does this mean the the judge will rule, for certain, on constitutionality? Good reportage to tell us this, but we are achin’ for more! In addition to achin’ for bacon.

      • emptywheel says:

        It is the first time a suit by users challenging the dragnet got filed at FISC. Of course there have been a bunch filed in normal District Courts. FW mentioned the amicus provision in USAF, so it does reflect USAF in that way.

        I think the judge didn’t question standing bc 1) he wants to argue this, to answer any questions about legality (but probably only legality, not constitutionality, but who knows) and 2) FW actually wrote one of the best briefs on standing I’ve seen, in that it acknowledges this is about collection on all Americans off the backbone, not about collection at end-user accounts.

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