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(AP) — A federal appeals court on Thursday reinstated Saudi Arabia as a defendant in lawsuits claiming it provided support to al-Qaida before the Sept. 11, 2001, terror attacks. A three-judge panel of the 2nd U.S. Circuit Court of Appeals said restoring Saudi Arabia was necessary to be consistent with a ruling by a different 2nd Circuit panel that allowed another lawsuit to go forward in which a man sued Afghanistan and other defendants for the death of his wife in the Sept. 11 attacks.The 2nd Circuit and a lower court had previously ruled that Saudi Arabia was protected by sovereign immunity, which generally means that foreign countries can't be sued in American courts. But in its latest ruling, the 2nd Circuit said a legal exception existed that would allow Saudi Arabia to remain as a defendant, just as Afghanistan remained in the similar case."The procedural history of this case produced inconsistent results between two sets of plaintiffs suing for damages based on the same incident," the appeals court said in a decision written by Circuit Judge Chester J. Straub. "We conclude that the circumstances here are 'extraordinary' and warrant relief."

The lawsuits were brought in 2002 and afterward against countries, companies and organizations accused of aiding al-Qaida and other terrorist groups. They sought billions of dollars in damages.In the lawsuits, lawyers argued that the Sept. 11 attacks, which destroyed the World Trade Center and killed thousands of people, had been planned for years by a network of Islamic militants with the assistance of banks, governments and individuals.Lawyers in the Sept. 11 cases have frequently cited the report by the Sept. 11 Commission. Lawyers for the plaintiffs have said the commission supported their argument that Saudi Arabia had long been considered the primary source of al-Qaida funding, while lawyers for Saudi Arabia have argued that the commission found no evidence that the Saudi government as an institution or senior Saudi officials individually funded al-Qaida.

This morning, the Second Circuit issued a follow-on ruling to its May decision in ACLU v. Clapper (which had held that the NSA’s bulk telephone records program was unlawful insofar as it had not properly been authorized by Congress). In a nutshell, today’s ruling rejects the ACLU’s request for an injunction against the continued operation of the program for the duration of the 180-day transitional period (which ends on November 29) from the old program to the quite different collection regime authorized by the USA Freedom Act. As the Second Circuit (in my view, quite correctly) concluded, “Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period.” So far, so good. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment. But rather than decide that (momentous) question, the Second Circuit ducked:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. In other words, because any constitutional violation is short-lived, and because it results from the “considered decision” of Congress, it would be fruitless to actually resolve the constitutionality of bulk collection during the transitional period.

Hopefully, it won’t take a lot of convincing for folks to understand just how wrong-headed this is. For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. The fact that this surveillance has a limited shelf-life (and/or that Congress was complicit in it) doesn’t in any way ameliorate the constitutional violation — which is exactly why the Supreme Court has, for generations, recognized an exception to mootness doctrine for constitutional violations that, owing to their short duration, are “capable of repetition, yet evading review.” Indeed, in this very same opinion, the Second Circuit first held that the ACLU’s challenge isn’t moot, only to then invokes mootness-like principles to justify not resolving the constitutional claim. It can’t be both; either the constitutional challenge is moot, or it isn’t. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question, and the Second Circuit’s unconvincing refusal to answer that question in a context in which it is quite squarely presented is nothing short of feckless.

The leading civil liberties group in the United States has requested a federal court to stop the National Security Agency from collecting Americans’ phone data in bulk through the end of the year.

While the surveillance dragnet was phased out by Congress and Barack Obama last month, an American Civil Liberties Union suit seeks to end a twilight, zombie period of the same US phone records collection, slated under the new law to last six months. “Today the government is continuing – after a brief suspension – to collect Americans’ call records in bulk on the purported authority of precisely the same statutory language this court has already concluded does not permit it,” the ACLU writes in a motion filed on Tuesday before the second circuit court of appeals.

The venue is significant. On 7 May, as Congress debated ending the domestic phone-records collection, the second circuit ruled the collection was illegal. Yet it did not order Obama’s administration to cease the bulk collection, writing that a preferable option would be to stay out of the unfolding legislative battle over the future scope of US surveillance. That debate ended on 2 June with the passage of the USA Freedom Act, which reinstated expired provisions of the Patriot Act that the government had since 2006 relied upon – erroneously, in the second circuit’s view – for the bulk collection. Yet it ended the NSA’s bulk US phone records collection and created a new mechanism for the NSA to gather “call data records” from telecoms pursuant to a court order.

A federal judge who seems keen on blocking the National Security Agency's phone records collection program has a clear path to doing so after a federal appeals court removed a potential obstacle Tuesday.The U.S. Court of Appeals for the D.C. Circuit formally ended an appeal in the case Tuesday, effectively returning control over the underlying lawsuit to U.S. District Court Judge Richard Leon.Leon could now act at any time to require the NSA to shut the program down, but such a move seems most likely after Thursday, when a hearing is scheduled on the suit filed by conservative activist Larry Klayman.

Nearly two years ago, Leon ruled that the NSA program--sometimes known as the Section 215 business records program--was likely unconstitutional and he ordered the program halted. That time he put his order on hold pending appeal, but at a hearing last month the judge sounded eager to issue a permanent injunction in the case before the program's scheduled end next month."The clock is running and there isn't much time between now and November 29," Leon told Klayman at the Sept. 2 session. "This court believes there are millions and millions of Americans whose constitutional rights have been and are being violated, but the window ... for action is very small ... It's time to move."

In May, the New York-based 2nd Circuit U.S. Court of Appeals ruled that the NSA phone metadata program was unlawful because the Patriot Act provision used to authorize it did not in fact provide authority for bulk collection of records largely unrelated to terrorism. The appeals court heard a new round of oral arguments on that case last month, focusing on the impact the law passed in June will have on the litigation.

The U.S. government, citing possible "exceptionally grave harm to national security," told a federal appeals court it wants to give the public less information about its legal justification for using drones to kill Americans suspected of terrorism overseas. The Justice Department, Department of Defense and Central Intelligence Agency made the request in papers submitted late Thursday to the 2nd U.S. Circuit Court of Appeals in Manhattan. The document outlining the justification was sought through a Freedom of Information request by The New York Times and the American Civil Liberties Union. In April, a three-judge panel of the court ordered the memo released.

Lawyers for the government said they were not appealing the order but instead were demanding additional redactions to protect national security and to prevent damage to the government's ability to engage in confidential deliberations and to seek confidential legal advice. It asked that the full 2nd Circuit consider the request if the three-judge panel turned it down. It also suggested that the request be sent to the lower court for further review of specific changes the government was requesting. Lawyers for the Times and ACLU said Friday that the government's continued delays regarding the document are cheating the public of a fully informed and fair debate over the highly classified "targeted-killing" program.

David E. McCraw, vice president and assistant general counsel of The New York Times Co., said in an email: "The government raised all these points before and lost. After two and a half years of litigation, it's time for the delays to stop so the American people can fully participate in the debate on this important issue."

On May 10, 2013, John Brennan presented CIA’s response to the Senate Intelligence Committee Torture Report to the President. Official White House Photo by Pete Souza. The fight between the CIA and the Senate Intelligence Committee over the Committee’s Torture Report – which Dan Froomkin covered here – has now zeroed in on the White House. Did the White House order the CIA to withdraw 920 documents from a server made available to Committee staffers, as Senator Dianne Feinstein says the agency claimed in 2010? Were those documents – perhaps thousands of them – pulled in deference to a White House claim of executive privilege, as Senator Mark Udall and then CIA General Counsel Stephen Preston suggested last fall? And is the White House continuing to withhold 9,000 pages of documents without invoking privilege, as McClatchy reported yesterday? We can be sure about one thing: The Obama White House has covered up the Bush presidency’s role in the torture program for years. Specifically, from 2009 to 2012, the administration went to extraordinary lengths to keep a single short phrase, describing President Bush’s authorization of the torture program, secret.

As Steven Aftergood, director of the Federation of American Scientists Project on Government Secrecy, noted  in 2009 – shortly after Hayden revealed that torture started as a covert operation – this means there should be a paper trail implicating President Bush in the torture program. “[T]here should be a Presidential ‘finding’ authorizing the program,” he said, “and [] such a finding should have been provided to Congressional overseers.” The National Security Act dictates that every covert operation must be supported by a written declaration finding that the action is necessary and important to the national security. The Congressional Intelligence committees – or at least the Chair and Ranking Member – should receive notice of the finding. But there is evidence that those Congressional overseers were never told that the finding the president signed on September 17, 2001 authorized torture. For example, a letter from then ranking member of the House Intelligence Committee, Jane Harman, to the CIA’s General Counsel following her first briefing on torture asked: “Have enhanced techniques been authorized and approved by the President?” The CIA’s response at the time was simply that “policy as well as legal matters have been addressed within the Executive Branch.”

Nevertheless, the finding does exist. The CIA even disclosed its existence in response to the ACLU FOIA, describing it as “a 14-page memorandum dated 17 September 2001 from President Bush to the Director of the CIA pertaining to the CIA’s authorization to detain terrorists.” In an order in the ACLU suit, Judge Alvin K. Hellerstein confirmed that the declaration was “intertwined with” the administration’s effort to keep the language in the Tenet document hidden. When the administration succeeded in keeping that short phrase secret, all effort to release the declaration also ended.

In a landmark victory for privacy, a federal appeals court ruled unanimously today that the mass phone-records program exposed two years ago by NSA whistleblower Edward Snowden is illegal because it goes far beyond what Congress ever intended to permit when it passed Section 215 of the Patriot Act. The ruling in ACLU v. Clapper is enormously significant, and not only because the program in question — the first to be revealed by Edward Snowden — is at the heart of a legislative reform effort playing out right now, or because it sparked the most significant debate about government surveillance in decades. The decision could also affect many other laws the government has stretched to the breaking point in order to justify dragnet collection of Americans’ sensitive information. Under the program, revealed in the Guardian on June 5, 2013, telecommunications companies hand over to the NSA, on a daily basis, records relating to the calls of all of their customers. Those records include information about who called whom, when, and for how long. The ACLU sued the NSA over the program just days after it was revealed, and we took the case to the Second Circuit Court of Appeals after it was dismissed by a district court.

A few points on what makes the decision so important. 1. It recognizes that Section 215 of the Patriot Act does not authorize the government to collect information on such a massive scale.

2. The decision’s significance extends far beyond the phone records program alone. It implicates other mass spying programs that we have learned about in the past two years and — almost certainly ­— others that the government continues to conceal from the public. For example, we know that the Drug Enforcement Administration, for decades, employed a similar definition of “relevance” to amass logs of every call made from the United States to as many as 116 different countries. The same theory was also used to justify the collection of email metadata. Both those programs have been discontinued, but the legal reasoning hasn’t, and it could very well be the basis for programs the government has never acknowledged to the public, including the CIA’s bulk collection of Americans’ financial records.

In a bid to clear the way for a controversial Senate nominee, the Obama administration signaled it will publicly reveal a secret memo explaining its legal justification for using drones to kill American citizens overseas.  The Justice Department, officials say, has decided not to appeal a Court of Appeals ruling requiring disclosure of a redacted version of the memo under the Freedom of Information Act. ADVERTISEMENTADVERTISEMENT The decision to release the documents comes as the Senate is to vote Wednesday on advancing President Obama's nomination of the memo's author, Harvard professor and former Justice Department official David Barron, to sit on the 1st U.S. Circuit Court of Appeals in Boston. 

Sen. Rand Paul, R-Ky., has vowed to fight Barron's confirmation, and some Democratic senators had called for the memo's public release before a final vote. Paul reiterated his opposition on Wednesday.  "I cannot support and will not support a lifetime appointment of anyone who believes it's OK to kill an American citizen not involved in combat without a trial," Paul said in the Senate.  But a key Democratic holdout against Barron's nomination, Sen. Mark Udall D-Colo., announced Tuesday night he will now support Barron because the memo is being released. "This is a welcome development for government transparency and affirms that although the government does have the right to keep national security secrets, it does not get to have secret law," Udall said in a statement.  Sen. Ron Wyden, D-Ore., had also been pushing for public disclosure of Barron's writings and was one of several Democrats who had been refusing to say whether he'd vote for confirmation without it. "That's certainly very constructive," Wyden said when told of the decision not to appeal.

Wednesday's expected procedural vote would allow the Senate to move ahead with a final vote on Barron on Thursday. "I think we'll be OK," Senate Majority Leader Harry Reid, D-Nev., said earlier Tuesday. Anwar al-Awlaki, an Al Qaeda leader born in the United States, was killed after being targeted by a drone strike in Yemen in September 2011. Some legal scholars and human rights activists complained that it was illegal for the U.S. to kill American citizens away from the battlefield without a trial. The White House had agreed under the pressure to show senators unredacted copies of all written legal advice written by Barron regarding the potential use of lethal force against U.S. citizens in counterterrorism operations. Until now, the administration has fought in court to keep the writings from public view. But administration officials said that Solicitor General Donald Verrilli Jr. decided this week not appeal an April 21 ruling requiring disclosure by the 2nd U.S. Circuit Court of Appeals in New York and that Attorney General Eric Holder concurred with his opinion.

The National Security Agency on Tuesday restarted its bulk collection of Americans’ phone records for a temporary period, following a federal court ruling this week that gave it the green light, U.S. officials said. The Foreign Intelligence Surveillance Court on Monday ruled that the NSA could resume gathering millions of Americans’ phone metadata — call times, dates and durations — to scan for links to foreign terrorists. [Here’s the court’s opinion] But the resumption is good for only 180 days — or until Nov. 29, in compliance with the USA Freedom Act. That law, which President Obama signed June 2 after a contentious congressional debate, will end the government’s bulk collection of metadata. It provided, however, for a transition period to allow the NSA time to set up an alternative system in which the data is stored by the phone companies.

After the law took effect, the government immediately applied to the surveillance court to restart its collection. Because Congress passed the bill a day after the underlying statute authorizing the NSA program had expired, there was a question as to whether lawmakers had authorized the government’s temporary harvesting of phone records. “In passing the USA Freedom Act, Congress clearly intended to end bulk data collection of business records and other tangible things,” Judge Michael W. Mosman wrote in his opinion. “But what it took away with one hand, it gave back — for a limited time — with the other. . . . It chose to allow a 180-day transitional period during which such [bulk] collection could continue.”

Sen. Ron Wyden (D-Ore.) said he saw no reason to resume collection, even on a temporary basis. “This illegal dragnet surveillance violated Americans’ rights for 14 years without making our country any safer,” he said. Mosman also ruled that FreedomWorks, a grass-roots libertarian organization, and its attorney, Ken Cuccinelli II, could submit “friend of the court” briefs that argue against the lawfulness of the metadata program. In May, a federal appeals court in New York held that the program was unlawful. The U.S. Court of Appeals for the 2nd Circuit ruled that the program stretched the meaning of the statute — Section 215 of the USA Patriot Act — to enable data collection in “staggering” volumes in the chance that “at some future point” there might be a need to search for terrorist links.