A panel of three appeals court judges—all appointed by Republican presidents—found a way Friday to allow the National Security Agency’s spying on Americans’ telephone conversations to continue.

The panel ruled (pdf) unanimously that the plaintiffs, led by conservative activist Larry Klayman, couldn’t prove their calls had been swept up because their calls were handled by Verizon Wireless, not Verizon Business, which had previously been found to have turned over calling data to the National Security Agency (NSA). This ruling came despite government documents released earlier this month that showed the NSA had also swept up Verizon Wireless data.

Judges Janice Rogers Brown, appointed by George W. Bush, and Stephen Williams and David Sentelle, both appointed by Ronald Reagan, sent the case back to the trial court, forcing the plaintiffs to try to prove their specific records had been obtained by the NSA.

“The court declined to consider the critically important questions of whether the U.S. Constitution allows the government to secretly shift from targeted to mass surveillance of the telephone calls (and associations) of Americans,” Cindy Cohn of the Electronic Frontier Foundation wrote. “….Instead, it endorsed the government’s argument that no public, adversarial court can review its actions unless those seeking review can prove with some certainty that they were one of the millions whose records were collected.”

Although the law allowing the call collection had been ruled unconstitutional in 2013, the injunction the trial court issued had been stayed to allow the government to appeal the ruling. So, the ruling Friday will merely allow the status quo to continue.

The law being challenged will be supplanted on November 29 by provisions of the USA Freedom Act, which was signed into law by President Barack Obama on June 2.


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