Prediction: If you’ve gone up in a balloon over U.S. district judge Richard Leon’s ruling yesterday, holding the NSA’s telephony metadata collection and analysis program unconstitutional, enjoy the ride while you can. It’s going to be a short one.
Judge Leon’s decision is almost comically lawless. In the most sensible part of it, he stayed his ruling for however long it takes the D.C. Circuit to hear the appeal – and doubtless reverse him.
I do not want to belabor a point already made several times, but the Constitution sets out the minimum guarantees government must honor – in the case of the Fourth Amendment, the right to be secure in our “persons, houses, papers, and effects” from unreasonable searches and seizures. This does not mean we cannot or should not enjoy additional protections, especially as time and technology change. Those additional protections, however, are supposed to be erected by us through our representatives in the political process, not by judges based on their subjectively malleable notions of privacy rights.
The NSA program, which Judge Leon seems to assume contributes minimally at best to our security from terrorist attacks, was arrived at through the political process. The beauty of it is that it can easily be altered or repealed if the circumstances warrant doing so. As I’ve argued before, I believe it is a good and important program that enables technology that can identify terrorists before they strike while providing judicial and congressional oversight to discourage and crack down on any executive branch abuses. It is also true, however, that the program turns the usual investigative process on its head. Generally speaking, the government must establish reasonable grounds for suspicion before using coercive methods (e.g., subpoenas, production orders, search warrants) to collect information that proves wrongdoing. In the NSA program, by contrast, the government collects information first, without any individualized suspicion of wrongdoing; then, once it has independently developed suspicions that some phone number or calling pattern is associated with terrorism, it runs searches involving that number or pattern through its gigantic database (comprised of all the metadata information it has collected) to establish connections which may help identify terrorists operating within our country.
If that happens, though, it should happen politically, not by judicial fiat. Those who worry about executive abuse of power ought to consider Judge Leon’s ruling a reminder that judges can be lawless, too – and when they are, we have far less recourse.