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NSA Judicial Ruling Will Be Short-lived . . . But the Program Still Has Big Political Problems



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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.

To cut to the chase, as we have noted here before, the Supreme Court ruled in its 1979 Smith v. Maryland case that a telephone service provider’s records of a customer’s telephone activity – e.g., the fact that a call happened, the phone numbers involved, the duration of the call, but not the actual content of the call – do not implicate the Fourth Amendment. Judge Leon reasoned, if you can call it that, that he did not need to follow Smith because . . . wait for it . . . it’s a really old case and times have changed. It may be, and they may have, but lower-court judges don’t get to do that. (And how do you figure the mainstream-media organs celebrating Judge Leon today would react if some other district judge tried the “it’s too old, plus times and technology have changed” razzle-dazzle on, say, Roe v. Wade?) In the federal judiciary, only the Supreme Court has the authority to reverse its own precedents. Unless and until the high court does so, the district courts and circuit courts of appeal are bound to follow those precedents, even if they are long in the tooth – albeit, not nearly as long in the tooth as the Fourth Amendment itself, which says nothing about “expectation of privacy,” much less about a person’s having a privacy interest in property that belongs not to him but to a third-party service provider.

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.

This shifting of the paradigm from suspicion first to collection first is potentially dangerous to liberty. It has to have strong political support: The people – meaning us, not the courts – have to be satisfied that the program materially contributes to our safety and that this paradigm shift is not going to be expanded beyond this narrow, well-justified special national-security need to more mundane areas of law-enforcement and security. Many people I respect vigorously argue that the government has failed to make that case convincingly. As someone who supports the program, I admit to being disappointed by the lukewarm defense the program has gotten from the Obama administration (which is ambivalent at best) and from the national-security Right (which has focused too much on legality and not enough on effectiveness). If the political case for the program is not made in a much more compelling way, the program will surely be dramatically curtailed if not gutted.

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.



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