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September 26, 2013

Scalia expects NSA program to end up in court

McLEAN, Va. — Supreme Court Justice Antonin Scalia said Wednesday that the courts ultimately will have to determine the legality of surveillance programs by the National Security Agency.

And he's not sure that's a good thing in an era of complex security threats against the United States.

Scalia told the Northern Virginia Technology Council that questions about how much information the NSA can collect about Americans' telephone calls and under what circumstances the agency can monitor conversations are best answered by the elected branches of government.

But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge's approval.

"The consequence of that is that whether the NSA can do the stuff it's been doing ... which used to be a question for the people ... will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed," he said.

Scalia did not raise the issue in his speech, but instead responded to a question about it. He repeatedly used the term "wiretap" in his comments, but indicated later that he was speaking more generally about NSA surveillance, including the massive collection of Americans' phone records.

In July, following the disclosures by NSA leaker Edward Snowden about the extent of the agency's surveillance programs, the Electronic Privacy Information Center asked the Supreme Court directly to bar NSA from collecting phone call records on millions of U.S. customers. The court has not yet decided whether to hear the case.

Civil liberties groups also have filed lawsuits challenging the program as a violation of Americans' privacy.

Earlier this year, the Court ruled in a 5-4 vote that clients represented by the American Civil Liberties Union lacked standing to challenge a 2008 law under which the NSA conducts aspects of its surveillance. Scalia voted with the majority to turn away that challenge to the law.

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