December 17, 2013

The Post reports, “A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional. U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has ‘demonstrated a substantial likelihood of success’ on the basis of Fourth Amendment privacy protections against unreasonable searches.” Before advocates on either side of the issue get too exercised, they should understand it is very likely this ruling will be overturned.

Director of National Intelligence James Clapper testifies on Capitol Hill before the House Intelligence Committee (AP Photo/ Evan Vucci)
Director of National Intelligence James Clapper testifies before the House Intelligence Committee (Evan Vucci/Associated Press)

Over at the indispensable Lawfare blog, Benjamin Wittes of the Brookings Institution explains: “It’s an odd document. For one thing, it’s focused on a constitutional matter on which the 215 program is—at least under current doctrine—on pretty solid ground. And it ignores, because of the judge’s Administrative Procedures Act ruling, the issue on which the 215 program stands on far shakier ground: that is, the statutory question of whether the program is, in fact, authorized by Section 215 of the Patriot Act.” Moreover, Leon ignored the controlling Supreme Court precedent in the case (“I don’t think there are many conceivable panels of the D.C. Circuit Court of Appeals that will not regard this case as controlled by Smith v. Maryland“), which held that data such as phone numbers aren’t even covered by the Fourth Amendment. That’s sort of a major oversight, and one that carries a national security risk few appellate courts will want to take on. I tend to agree that Leon’s ruling isn’t going to survive appeal:

The harder question is how Judge Leon’s analysis—which is thus best understood as a kind of amicus brief to the Supreme Court—will play before the justices. Here there’s at least some more reason to think it might gain traction. In the Jones case, after all, the majority of justices declared long-term GPS tracking of a suspect to be a search, though for very different reasons, and Justice Sotomayor openly contemplated revisiting the third-party disclosure rule.

But here’s the problem: Are five justices really ready to shut down a major intelligence program that administrations of both parties have insisted represents a crucial line of defense against terrorism? Judge Leon can brush away, as he does in this opinion, the suggestion that the 215 program plays an important role in the national defense. But he does so knowing that he is staying his own ruling and that it will only go into effect if higher authorities agree with his analysis. In other words, if this opinion ever has legs, Judge Leon will have set table, but he will not have served the food, and nobody will blame him if the meal goes off poorly.

A former Justice Department lawyer expert in these matters told me he finds that the ruling is “unconvincing on the law and includes faulty assumptions about NSA’s compliance issues and the value and effectiveness of the program.”

Meanwhile, the administration may blow up its own program, despite senior officials’ insistence the program is vital to anti-terrorism efforts. If the courts don’t get to the NSA program, then the president’s NSA review panel may do so, if leaks about its work are to be believed. In a draft report to be released in January the panel, speculation has it, will advocate dumping the program to gather metadata, limit surveillance on foreign governments and empower a public advocate who will advance pro-privacy concerns but apparently not the national security needs of the country. (Who advocates for the public’s right not to be blown up? Not clear, but apparently not this president.)

This is a shameless off-loading of presidential authority, not to mention bad national security policy. The very same folks who excoriate the failure to connect the dots now want to ban the dot collection. Ultimately this is the president’s call, constitutionally speaking. If he — as he’s mumbled a  few times with little enthusiasm — thinks the NSA is worthwhile, indeed essential, in our anti-terrorism activities, he should say so and vigorously defend the program. Unfortunately, when there is a chief executive as passive as this one and as unwilling to ruffle the feathers of his base as is Obama, the program will be eviscerated.

The Post editorial board makes the salient point that if “the government is to emerge from Mr. Snowden’s revelations with the authorities that officials insist are crucial, it will have to do more to demonstrate why they are essential and how Americans’ privacy is being protected.” It is, of course, the president who must explain and authorize his officials to explain to the courts and the American people why the NSA is essential. Right-wing isolationists, left-wing civil libertarians and judges who lack sufficient detail to uphold the program otherwise will decimate it. If this is what the president wants, he should say so and take responsibility for the risk to Americans; if not, it’s time he stepped up to the plate to do his primary function, which (he would often rather not acknowledge) is protecting us from foreign enemies even — especially – when the methods are unpopular or the costs in blood and treasure significant.

Jennifer Rubin writes the Right Turn blog for The Post, offering reported opinion from a conservative perspective.