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How will Obama defend secret NSA program in court? Letter offers clue.

The ACLU is challenging the NSA's secret data-collection program in court. The Obama administration responded with a letter making its case for why the program is constitutional and necessary.

By Staff writer / July 22, 2013

The new National Security Agency (NSA) Utah Data Center in Bluffdale is expected to open this fall. It will store massive amounts of data.

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The Obama administration has filed what appears to be the first legal defense of the National Security Administration's dragnet of American phone data since Edward Snowden first leaked details to the public.

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As part of a legal proceedings set for this Thursday, the US Department of Justice on Friday sent a letter to Judge William Pauley in the US District Court in Manhattan, outlining the broad contours of the "highly sensitive and, in many respects, still classified intelligence-collection program."

The letter revealed some of the strategies and arguments the Obama administration will employ as it defends the NSA program against the American Civil Liberties Union (ACLU), which filed a lawsuit in June.

With a number of other lawsuits challenging the secret collection of data, the filing also represents one of the first salvos within the new legal and political landscape created by the Snowden leaks. The battles ahead in Congress and in courtrooms will most likely continue for years, and they will help redefine the parameters of privacy in a digital age still dominated by fears of terrorism and threats to national security.

In its lawsuit, the ACLU is asking the court to halt the program immediately with a preliminary injunction before the case is decided. The suit argues in part that the government's clandestine data mining violates First Amendment rights of free speech and association – that it, in effect, puts a "chill" on free speech – and that it violates the Fourth Amendment's protections against warrantless search and seizure.

The Justice Department disagrees with those assessments. The letter, by David Jones, an assistant US attorney, argues that the program's checks and balances are adequate. For example, the government may not eavesdrop on anyone's phone calls or record anything participants say. All it can do is collect phone numbers making and receiving certain calls, as well as the date, time, and duration of each call – the so called "metadata."

Even then, the letter continues, β€œthe Government is prohibited ... from indiscriminately sifting through the data. The data-base may only be queried for intelligence purposes by NSA analysts where there is a reasonable, articulable suspicion ("RAS"), based on specific facts."

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