The Obama Administration is fighting hard against an effort by the Electronic Privacy Information Center (EPIC) to ask the Supreme Court to weigh in on the issue of NSA surveillance of Americans’ telephone calls, insisting the court lacks jurisdiction and the issue should be left to lower courts.
EPIC has sought (PDF) a Supreme Court answer on whether the FISA courts were exceeding their authority by ordering telephone companies like Verizon to disclose information on every single phone call made by every single customer they have.
Under US law, the Supreme Court can only issue such an extraordinary writ if the aggrieved have no other avenue available, and EPIC argues that since the Justice Department has said the lower courts don’t have jurisdiction, the Supreme Court must.
The Obama Administration seems to be trying to have its cake and eat it too here, arguing that the Supreme Court also lacks jurisdiction, and that the issue should simply be allowed to “percolate” in lower courts for the time being.
Yet it clearly opposes letting those lower courts weigh in either, so the “lacks jurisdiction” argument in this case seems simply to be an effort to stall for time. Moreover, the argument that EPIC can’t prove its members were targeted by the FISA order because the FISA court limits access to the data collected seems to be made in extremely bad faith, since it has already been established that the NSA is collecting data on literally everybody with a telephone.