Some conservatives who should know better than anyone else about the limits of the judiciary have fallen into the habit of waiting for the courts to bail them out from political losses to the left or perceived overreach by the executive branch.
They lost on Obamacare in Congress (and didn’t flip the Senate or the White House in 2010 and 2012); they held out hope that the Supreme Court would get it “right.” Chief Justice John Roberts delivered a harsh blow to the notion that courts are predictable backstops for failures in the elected branches.
Likewise on the NSA programs and anti-terror tactics more generally, I’ve argued, right-wing libertarians have also overplayed their constitutional cards. Former Bush Justice Department lawyer John Yoo put it succinctly this week:
Hiding behind the FISA court may allow our elected leadership to dilute their accountability for the electronic surveillance that has helped stopped terrorist attacks. It may even reassure the public that a pair of impartial judicial eyes has examined the NSA’s operations and found them reasonable.
But it will also advance the legalization of warfare, which will have the deeper cost of slowing the ability of our military and intelligence agencies to act with the speed and secrecy needed to protect the nation’s security. And judicial involvement won’t magically subject our intelligence operations to the Constitution.
In fact, as we both have argued, the Fourth Amendment simply doesn’t apply to these sorts of cases. (“It is not the court’s secrecy or lack of defense counsel – a sensible recognition of the need to protect the intelligence sources and methods – that raises the core constitutional problem. Rather, it is that the judges cannot grant true Fourth Amendment warrants under the Patriot Act”).
We’ve grown too accustomed to imagining every case is subject to a constitutional answer and all power is subject to court approval. But the Constitution and the courts’ own precedent tell us that is not true. (Hence, the lines of jurisprudence about “standing,” “no case or controversy” and “political questions.”)
After all, this is why it is so vital for conservatives, most especially on national security, to win elections if they want to determine policy. The president is largely responsible in this realm and retains most of the cards. The courts are largely nonplayers and shouldn’t be looked at to referee every public debate and all jostling over the proper role of the three branches.
Despite libertarians caterwauling, the administration has been exceptionally cramped in its operation of these programs. The New York Times reported on the excruciating detail and limitations placed on NSA surveillance so as to focus almost exclusively on foreigners, calling the internally imposed strictures “a glimpse of a rule-bound intelligence bureaucracy that is highly sensitive to the distinction between foreigners and ‘U.S. persons,’ which technically include not only American citizens and legal residents but American companies and nonprofit organizations as well. The two sets of rules, each nine pages long, belie the image of a rogue intelligence agency recklessly violating Americans’ privacy”:
They show, for example, that N.S.A. officers who intercept an American online or on the phone — say, while monitoring the phone or e-mail of a foreign diplomat or a suspected terrorist — can preserve the recording or transcript if they believe the contents include “foreign intelligence information” or evidence of a possible crime. They can likewise preserve the intercept if it contains information on a “threat of serious harm to life or property” or sheds light on technical issues like encryption or vulnerability to cyberattacks. . . .
A senior American intelligence official said that while the possibility of incidental collection of Americans’ calls and e-mails had always been acknowledged, the N.S.A.’s goal is to focus on foreigners. “The point we’ve been making is this is not a tool for listening to Americans,” the official said.
If anything, one might question whether in an age of self-radicalized Americans we are letting too much slip through the net.
The lesson here is to put much more focus on national security in campaigns and to vet our political candidates more carefully. It is elected leaders’ judgment, humility, self-restraint and steely-eyed realism about the dangers we face that will in large part determine the balance between privacy and national security. In other words, next time we should elect someone more trustworthy and experiened in national security than the present Oval office occupant.