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Judges, Leave the NSA Alone


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Federal judge Richard Leon’s ruling that the National Security Agency’s collection of telephone-call data violates the Fourth Amendment was based on slipshod legal arguments, and ruled on a question that a court of its level should not even have considered. Unfortunately, the conclusions of a review of the NSA’s work ordered by President Obama, released this week, have a similar problem: They rely on faulty legal reasoning to justify a power grab by the courts.

The court contended that technology has advanced so much that records of phone calls (“metadata”) cannot be consulted without a warrant — even though, in a 1974 case, the Supreme Court ruled that the government needed no warrant to obtain metadata (through the installation of a “pen register”).

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The president’s review board endorses a conclusion similar to Leon’s: It stitches together concurring opinions from a largely irrelevant 2012 Supreme Court case to suggest that the Constitution justifies, and maybe requires, giving courts much more control over the NSA’s use of metadata. The panel claims that it is agnostic on the Fourth Amendment question, but this discussion reveals its members’ clear preference for judicial power.

The right check on our national surveillance programs, as they work today, is not the Constitution, with which they clearly comply, but politicians and the public, who are discomfited by them. In some cases, they have reason to be: Abuses do happen, oversight is necessary, and the programs’ effectiveness has to be proven to the satisfaction of the public.

In the first place, rather than convene a body to decide how it would like to change the NSA’s programs, the executive branch should have the intelligence community explain and defend them. If, for instance, the collection of metadata is crucial to finding and catching terrorists, then it should be strongly defended, not neutered as a sop to the political moment. Instead of having the executive branch and Congress decide whether holding metadata is justified by our national-security needs, the panel basically entrusts federal judges with constantly revisiting that question on an individual basis.

Because of the flawed premise, the report focuses on suggesting that Congress should give courts more power to decide what the NSA may and may not do. (It also outsources some decision-making to outside institutions, including technology companies, and suggests new privacy protections for foreigners — as good a sign as any that Edward Snowden and his cheerleaders abroad have succeeded better at curtailing the effectiveness of the U.S. intelligence community than they have at winning victories for constitutional liberties.)

The most prominent recommendation is on metadata: The federal government would not be able to hold the information itself. Intelligence officers would have to seek permission from a judge whenever they want it — and such requests, like a subpoena, would have to be tailored to a particular purpose and limited in scope. This would defeat at least part of the purpose of the system, which relies on analyzing bulk data — only phone numbers and usage, not name and address information identifying subscribers — in order to detect phone numbers and calling patterns associated with known terrorists. The president has defended the program, but he and the intelligence community have done a relatively poor job of explaining why it is useful. Nonetheless, this question should ultimately be decided by the political branches accountable to the people whose lives are at stake, not unaccountable courts.

This is not to say the panel makes no good recommendations: It suggests, for instance, that the director of national intelligence compile an annual report summarizing the collection activities of the intelligence community and provide it to the congressional intelligence committees, to ensure that intelligence activities align with the interests of major policymakers. Major questions about the right measures to collect intelligence on asymmetric, global threats in the modern age still have to be resolved, but Congress and the White House can decide that over time, with the people holding them accountable.

It’s possible that, with Americans clearly concerned by the extent of the NSA’s work, Congress may hastily restrict the agency’s power in a way that will prove injurious to national security. But that is no reason to pretend courts have the last word on how heavily to weigh the interests of privacy. The political branches are still more competent to adjudicate the right balance than any court ever will be.



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