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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.