Law & the Courts

Will Congress Reject Today’s Dangerous NSA Ruling by Reauthorizing the Patriot Act?

A federal appeals court in New York today grievously erred in blocking the National Security Agency’s collection of telephone metadata — the calling records, but not the conversations — to detect terrorist attacks. Stripped of its flawed reasoning, the decision shows the blindness of the Left (one that also afflicts some libertarians) to the dire threat of foreign terrorism. Luckily, the decision will be of little import, because Congress will decide shortly whether to reauthorize or modify the NSA program, which will effectively overrule today’s ruling even before it reaches the Supreme Court.

In ACLU v. Clapper, the Second Circuit Court of Appeals showed its weak grip on reality. In the same week that two men attempted a Charlie Hebdo–like attack in Dallas, the Court indulged in libertarian fantasies of a Big Brother state. In the very introduction to the court’s opinion, Judge Gerard Lynch compared electronic surveillance in the wake of the 9/11 attacks to President Richard Nixon’s abuse of the NSA and the CIA to pursue the Democratic party and his other political enemies.

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The substance of the opinion begins: “In the early 1970s, in a climate not altogether unlike today’s, the intelligence‐gathering and surveillance activities of the NSA, the FBI, and the CIA came under public scrutiny.” After rehearsing the evils of the Nixon abuses and the investigation of the Church Committee, which set back the intelligence agencies for years, the Court declares: “We are faced today with a controversy similar” to those of the 1970s.

ACLU v. Clapper reveals a fundamental and dangerous misunderstanding of the challenges facing the nation today. There were no serious foreign terrorist attacks against the United States in the 1950s through the ’70s; the only true threat came from the Soviet Union and its allies. Nixon’s abuses came not from his efforts to protect the U.S. in the Cold War, but from his direction of intelligence assets against domestic political opponents. Only someone who has drunk the left-wing Kool-Aid could find equivalence between Watergate and the 9/11 attacks, after which presidents of both parties have ordered electronic-surveillance that has helped prevent another catastrophic terrorist attack on U.S. soil.

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The court’s comparison looks even worse when one considers Congress’s support for the NSA’s broad collection of metadata. Like every president before him, Nixon had engaged in electronic surveillance on his own authority. I happen to think that presidents have that power as part of their commander-in-chief authority in wartime, even though it also contains the potential for abuse. After the revelation of the Nixon-era scandals, Congress passed the Foreign Intelligence Surveillance Act in 1978, which requires the government to seek a warrant from a special federal court when it wants to eavesdrop for national-security reasons. Congress passed the Patriot Act in the first few weeks after the 9/11 attacks. Section 215 of the Act specifically expanded FISA to allow the government to seek a warrant to force the production of “any tangible things,” including “books, records, papers, documents, and other items.” To get the warrant, the government must show “there are reasonable grounds” that the records are “relevant” to a terrorism investigation. In the interests of full disclosure, I worked on the bill (as well as on NSA programs) while an official in the Bush Justice Department from 2001 to 2003.

It is difficult to conclude that telephone metadata does not fall within the plain meaning of the statute, as I argued in the Harvard Journal of Law and Public Policy last year. Not only did Congress enact this expansion of FISA in the wake of the 9/11 attacks, it has reenacted and even strengthened it several times since. Most recently, Congress reauthorized Section 215 in 2011, well after the New York Times and other newspapers leaked the existence of the NSA’s broad electronic-surveillance programs.

The Court displays a deep misunderstanding of the challenges of counterterrorism policy, which Congress understands far better.

To avoid the clear meaning of the law, the Second Circuit pulls a fast one familiar to any fan of Justice Scalia’s sharp critiques of sloppy interpretation. The Court finds a bit of legislative history that did not appear in the statute’s plain text. It quotes a statement on the floor of the Senate that the Patriot Act would provide the government with the same tools to fight terrorism that it had to fight drug dealers and the mafia, in particular broad grand-jury subpoenas for business records. During the 2006 reauthorization of Section 215, then-senator Jon Kyl of Arizona declared that “it was time to apply to terrorism many of the same kinds of techniques in law enforcement authorities that we already deemed very useful in investigating other kinds of crimes. Our idea was, if it is good enough to investigate money laundering or drug dealing, for example, we sure ought to use those same kinds of techniques to fight terrorists.”

From this single quote, the Court overturns the plain meaning of Section 215 to narrow the government only to those powers it already has in domestic crimes (which of course do not include the collection of telephone metadata into a database). The Court’s reliance on this single snippet would be almost laughably weak if the subject were not so serious. The quote comes, after all, from Jon Kyl, one of the staunchest defenders of the national security, who wanted not to limit Section 215, but merely to illustrate its uses. And it was uttered in 2006 as a description of what Congress thought it had done in 2001, not as a limitation of the statute in 2006 — or 2011, for that matter. The Second Circuit’s use of this single quote is a perfect example of why the selective use of legislative history in court rulings has been critiqued as “akin to looking over a crowd and picking out your friends.”

Finally, the Court displays a deep misunderstanding of the challenges of counterterrorism policy, which Congress understands far better. As Judge Richard Posner has recognized, an intelligence search “is a search for the needle in a haystack.” Rather than pursue suspects who have already committed a crime and whose identity is already known, intelligence agencies must search for clues among millions of potentially innocent connections, communications, and links. “The intelligence services,” Posner writes, “must cast a wide net with a fine mesh to catch the clues that may enable the next attack to be prevented.” Our government can detect terrorists by examining phone and e-mail communications, as well as evidence of joint travel, shared assets, common histories or families, meetings, and so on. If our intelligence agents locate a lead, they must quickly follow its many possible links to identify cells and the broader network of terrorists. A database of call data would allow a fast search for possible links in the most important place — the United States, where terrorists can inflict the most damage. Most of the calling records may well be innocent (just as most of the financial records of a suspected white-collar criminal may also be innocent), but the more complete the database, the better our intelligence agencies can pursue a lead into the U.S.

I admit that there are serious legal issues surrounding the NSA metadata program. The least serious is whether Congress has approved the NSA program — it clearly has, several times, by giving the government the broadest authority to collect “any tangible things” relevant to terrorism investigations. The more important question is whether our society should strike this balance of security and liberty. That fundamental question falls to Congress and the president, which have far superior knowledge and competence in dealing with foreign national-security threats and better reflect the wishes of the American people. The courts will have a role when legal challenges arise under the Fourth Amendment, but they have usually displayed deference to the president and Congress when they agree on national-security questions. Judicial modesty was sorely lacking in the court’s decision today.

Luckily, the elected branches of government will have ample opportunity to overrule the Second Circuit. Congress was already scheduled to reauthorize Section 215 in the next three weeks; otherwise, the law will sunset in June. The Senate may favor a bill that simply reauthorizes the Patriot Act, which should give it the chance to make clear it rejects the Court’s ruling. The House might require that telecom companies hold the database, which would still amount to a rejection of the Second Circuit’s decision. Or the decision could embolden critics of electronic surveillance, who were otherwise going to lose the debate, into gumming up the works and allowing the law to expire. In that worst possible result, our judges would bear responsibility for disarming our nation at a time when foreign threats are on the rise and attacks in the U.S. are in the offing.

John Yoo John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a trustee of Pacific Legal Foundation.

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