Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
What the Second Circuit Got Wrong
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 that has appeared again on our shores. 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 Texas, the Court indulged in libertarian fantasies of a Big Brother state. In the very introduction to the court’s opinion, Judge Gerald 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.
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 1970s; 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 deeply of left-wing Kool-Aid could find equivalence between Watergate and the 9/11 attacks, after which presidents of both parties have sought intelligence to stop another catastrophic terrorist attack on U.S. soil.
But to weaken the analogy further, Congress here authorized the NSA’s broad collection of metadata, while Nixon (like every president before him) had engaged in electronic surveillance on his own authority. After revelation of the Nixon-era abuses, 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 on communications for national security reasons. Even worse for the Court, Congress passed the Patriot Act in the first few weeks after the 9/11 attacks. 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.
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 (“The Legality of the NSA’s Bulk Data Surveillance Programs,” available for free download here). 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, in 2011, Congress reauthorized the provision known as Section 215, well after the New York Times and other newspapers leaked the existence of the NSA’s broad metadata collection programs.
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 interpretive techniques. 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 overturned 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 calling metadata into a database in a search for patterns). The Court’s reliance on this single snippet would be almost laughably weak if the subject did not involve national security. The quote comes, from, of all people, Jon Kyl, one of the staunchest defenders of the government’s national security interests, who would not have wanted to limit Section 215. It comes not as an effort to limit Section 215, but to illustrate its uses. The quote comes in 2006 as a description of what Congress thought it had done in 2001, and not as a limitation of the statute in 2006 or 2011. The Second Circuit’s use of this single quote truly fulfills the devastating critique of using legislative history as akin to looking out into a crowd and picking out one’s 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 calling 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 in the U.S.
I admit that there are serious legal issues surrounding the NSA metadata program. The least of them 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 where 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.
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 sunsets on schedule in June. The Senate may favor a bill that simply reauthorizes the Patriot Act, which should give it the chance to make clear that it rejects the court’s ruling. The House might require that telecom companies hold the database, but this would still amount to a rejection of the Second Circuit. Or the Second Circuit 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 scenario, 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.
Crossposted at National Review.
Published in Foreign Policy, General, Law
As this example shows us once again, legislative history cannot replace principled reasoning as the grounds of jurisprudence. When trying to understand the validity of any of the amendments of the Bill of Rights, it would be absurd to ask “Hmmm….how many of the Founders in Congress read (William) Blackstone?” and even if we could ascertain that, how could that have any bearing whatsoever? You let the principles stand on their own (do they have an internal coherence that comments the assent of the mind, as Hamilton noted in Federalist 31?), but if the full force of applying the principles becomes difficult or imprudent to bear, the legislature or better yet civil society will provide enough space to make prudential accommodations for limited circumstances (i.e. we have laws against racial discrimination, but last time I checked it was still alright to post a dating profile saying “S/W/F seeking S/W/M.”)
“In the same week that two men attempted a Charlie Hebdo-like attack in Texas” we had this program and … it didn’t stop them. Actually, it was traditional security that stopped them. The government, and its Panopticon, utterly failed.
If you want to explain how many domestic terrorist attacks the bulk collection of metadata has actually, you know, stopped, I’m willing to listen.
In the meantime, I’ll hold onto my “libertarian fantasies of a Big Brother state.”
A nation where every phone call I make is duly noted and recorded by a g-man in Virginia isn’t a fantasy of Big Brother, it is Big Brother.
Yep!
“In the same week that two men attempted a Charlie Hebdo-like attack in Texas” we had this program and … it didn’t stop them. Actually, it was traditional security that stopped them. The government, and its Panopticon, utterly failed.
If you want to explain how many domestic terrorist attacks the bulk collection of metadata has actually, you know, stopped, I’m willing to listen.
Fred, are we to understand you do not believe who the two assailants communicated with in the recent past is of any legitimate concern?
In the meantime, I’ll hold onto my “libertarian fantasies of a Big Brother state.”
A nation where every phone call I make is duly noted and recorded by a g-man in Virginia isn’t a fantasy of Big Brother, it is Big Brother.
As long as you are clear it is a fantasy.
You know, I have been looking at phone bills for many years now and never once did they strike me as Big Brotherish.
You need to collect data about when I call my wife to know about two attempted spree-shooters in Texas?
That’s sensical to you? The one guy had a conviction for lying to the feds. They needed to collect records about who I call and when to be able to keep tabs on him?
Perhaps because you weren’t looking at everyone’s phonebills.
You need to collect data about when I call my wife to know about two attempted spree-shooters in Texas?
That’s sensical to you? The one guy had a conviction for lying to the feds. They needed to collect records about who I call and when to be able to keep tabs on him?
Unless you have a time machine, yes you do.
The other shooter was not on the radar at all, was he?
Perhaps because you weren’t looking at everyone’s phonebills.
No one is looking at everyone’s phone bills. You are able to distinguish between ‘collecting’ and ‘looking,’ no?
Nope.
How odd that this metadata collection didn’t stop him…
I’m reminded of Janet Napolitano proclaming that “the system worked” with regard to foiling the underwear bomber on Flight 253.
If “the system” means “passengers subdued him when he set fire to his underoos,” then yes, I guess the system did work. But I’m not sure if it’s the best system to have in place.
Nope.
How odd that this metadata collection didn’t stop him…
I’m not sure you understand how this information is used.
I do.
I’m just waiting for the fantastical claims of the program’s proponents to yield something other than massive violations of the rights of free citizens.
Only in post-modern, post-Constitutional America can lawyers (here by Prof. Yoo, in 12 paragraphs) undo the specific meaning of these words:
and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things …
To the rest of us, creation of a secret court, FISA, which issues such general warrants (just like King George III), I guess this is merely a “fantasy of Big Brother.” If that is so, I wish Prof. Yoo would explain to us the fraud being regularly perpetrated upon the courts by law enforcement by the mechanism of “parallel construction.” This is where information obtained for so-called “national security” by the NSA is used surreptitiously to prosecute ordinary criminals. Through “parallel construction” courts and defendants never learn that this is “fruit of the poisonous tree,” i.e. was obtained illegally. This is no fantasy, especially when just about anyone in America can be prosecuted for something. All that is required is that you come to the attention of authorities, especially if you have expressed views which are not progressive.
I do.
I’m just waiting for the fantastical claims of the program’s proponents to yield something other than massive violations of the rights of free citizens.
If you are shocked the program did not identify the second shooter, you clearly don’t.
Maybe you can explain how you claim your privacy is violated by the collection of data that does not in any way belong to you?
This is where information obtained for so-called “national security” by the NSA is used surreptitiously to prosecute ordinary criminals. Through “parallel construction” courts and defendants never learn that this is “fruit of the poisonous tree,” i.e. was obtained illegally. This is no fantasy, especially when just about anyone in America can be prosecuted for something. All that is required is that you come to the attention of authorities, especially if you have expressed views which are not progressive.
Examples?
Maybe you can explain the point of this program if it doesn’t stop a damn thing. You’re the one in favor of eviscerating the 4th Amendment, the burden is on you.
?Why is the argument from the “collectors” always an all-or-nothing deal. I have no issue when someone presents a credible threat to a court to have a warrant to observe them. Until then, I expect good police work.
This is akin to the TSA, who has wasted billions of dollars for the last 12 + years – and never caught a terrorist. Not once. Even when they were warned of one.
I have no issue when someone presents a credible threat to a court to have a warrant to observe them.
The idea is to collect information on who the person was in contact with before he became a credible threat. The only way to do that is by collecting it beforehand.
Until then, I expect good police work.
This war not a crime.
That’s pretty much what the Brits said in 1776
?Well then, why not have the police or HSA or whoever just walk into your house before they know you’re a bad guy and search your stuff. If they find something, well then!
Our republic is messy. We demand certain rights and just because it’s “war” doesn’t excuse the government from protecting our rights. Every time we have done otherwise, it has gone badly. Look at the interment of the Nissan. ?You think that was a good idea because it was “war”.
That’s pretty much what the Brits said in 1776
It was war.
?Well then, why not have the police or HSA or whoever just walk into your house before they know you’re a bad guy and search your stuff. If they find something, well then!
Our republic is messy. We demand certain rights and just because it’s “war” doesn’t excuse the government from protecting our rights. Every time we have done otherwise, it has gone badly. Look at the interment of the Nissan. ?You think that was a good idea because it was “war”.
You do understand this is not a search, right? It is collection, no one sorts the data to look at who called whom until they go to a court and get a warrant for that specific person for the specific reason.
Since Fred has not seen fit to answer perhaps you will, how do you claim a right over data that in no way belongs to you?
They lost – for good reason.
It doesn’t belong to the government either. And as many things concerning privacy, there is an expectation that when the government does something, it does so within the law AND the constitution.
This collection of data by the government – for no clear cut reason than they can – is unseemly. It would be much like collecting data on where everyone went all the time. It simply isn’t their business. It is USSR-like.
It doesn’t belong to the government either. And as many things concerning privacy, there is an expectation that when the government does something, it does so within the law AND the constitution.
This collection of data by the government – for no clear cut reason than they can – is unseemly. It would be much like collecting data on where everyone went all the time. It simply isn’t their business. It is USSR-like.
No one is arguing it does, that is why the government goes to a court and the court approves the request and issues an order for it just like courts do around the nation everyday.
There is reason for it. In case you missed it, there are people who have tried and succeeded in killing thousands of us.
Do you honestly believe the nature of the communications of the two men who tried to commit mass murder in TX is of no national security concern?
But the two who tried in TX had no benefit from the collection of the billions and billions of calls that the NSA has. STILL they missed these clowns! And a cop armed and on guard, because someone felt there might be a problem, “solved” that issue.
Same thing in the case of the Times Square bomber. The TSA missed him, despite being told! It took old fashioned police work to actually catch him. And it seems that is the thing with all these yo-yo’s.
And even when the feds do have the goods on someone — like the Tsarnevs, about whom we were warned repeatedly by the Russians — they’re still allowed to kill people.
So you can argue that we need the information, but what good is having information if you don’t use it?
But the two who tried in TX had no benefit from the collection of the billions and billions of calls that the NSA has. STILL they missed these clowns! And a cop armed and on guard, because someone felt there might be a problem, “solved” that issue.
Same thing in the case of the Times Square bomber. The TSA missed him, despite being told! It took old fashioned police work to actually catch him. And it seems that is the thing with all these yo-yo’s.
I notice you have yet to answer the questions I pose.
You, like Fred seem to have no concept how this information is used.
No, I understand both how it is claimed to be collected and how it is used. I simply don’t agree that this kind of data culling has any benefit and is simply wrong. Find me someone who IS a verifiable suspect and THEN collect HIS data.
No, I understand both how it is claimed to be collected and how it is used. I simply don’t agree that this kind of data culling has any benefit and is simply wrong. Find me someone who IS a verifiable suspect and THEN collect HIS data.
This statement is evidence you do not understand how it is used, as does your indignation that no one found the second shooter or the Times Square bomber.
I ask again, do you honestly believe the nature of the communications of the two men who tried to commit mass murder in TX is of no national security concern?