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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
Klaatu,
I’ve been lurking lately (new job and move, oddly enough, to TX), but I wanted you to know that at least one person on this thread supports your view.
Keep the faith. No, it’s not just faith. Keep to the facts.
Of course. But it apparently did nothing to thwart the episode.
AND I see absolutely NO BENEFIT for the government to be collecting MY data. I am not a jihadi. I have no reason for anyone to think I am a jihadi. Neither has Fred. Nor you. ?So why do they have OUR data. There are millions upon millions of people who fall into that category. ?Why does the government need all their data.
And don’t say, “Because they don’t know who is or isn’t a jihadi.” That would make my point.
Of course.
Then why do you object to its collection.
But it apparently did nothing to thwart the episode.
How could it have, unless either of these men were communicating with someone whose records have been examined? Do you have any information they were?
AND I see absolutely NO BENEFIT for the government to be collecting MY data. I am not a jihadi. I have no reason for anyone to think I am a jihadi. Neither has Fred. Nor you. ?So why do they have OUR data. There are millions upon millions of people who fall into that category. ?Why does the government need all their data.
The data is not yours.
Because the entire idea is to identify those who were communicating with those under suspicion before they were under suspicion?
Do you understand that without this program we would have no access to the records of the two in attempted murderers in TX?
Ironically, you are arguing for a more invasive approach to the metadata. What the NSA does now is put the metadata aside, and then wait for a clue about WHAT to search for in the haystack–and to do it, they have to seek permission from a federal court (FISC is not a secret court–its a court that deals with secret things). Above, you are asking the NSA to sort and categorize the haystack, in order to separate the wheat from the chaff, which would touch YOUR metadata every time. Don’t you see, THAT is what would violate the US Constitution?
?We’re just going over the same stuff. It isn’t theirs either.
And the entire idea is wrong. Because they should not be looking before but after someone is under (legitimate) suspicion. For that you don’t need mountains of data. You need a warrant and then begin collecting data – on that person.
The problem is that you presuppose the haystack is acceptable. I do not.
?We’re just going over the same stuff. It isn’t theirs either.
Why do you continue to refer to it as yours?
And the entire idea is wrong. Because they should not be looking before but after someone is under (legitimate) suspicion. For that you don’t need mountains of data. You need a warrant and then begin collecting data – on that person.
So the communications history of the two men in TX is of no value? They are dead, they will not be communicating with anyone now that they of interest. If you had your way, we would have no idea who these two men have been communicating with.
Look. I’m an old guy. So I have a landline (OK – I’m really old fashioned).
So you claim that you can’t wiretap my phone BUT you can collect who I call, when I call them, how long the call is – but you “don’t listen in”.
?Really. ?You think any judge would have allowed that against the mafis – and they’re clearly bad guys.
And of course the way you got around all that was that you wiretapped every phone for 4 blocks around. Because you didn’t know which phone call might – might – be “useful”.
It isn’t the job of citizens to make things “easy” for the government; it’s the job of the government to do the job without intruding on me and my information – until they have a warrant, sworn to and signed, giving probable cause. It’s that simple.
Look. I’m an old guy. So I have a landline (OK – I’m really old fashioned).
So you claim that you can’t wiretap my phone BUT you can collect who I call, when I call them, how long the call is – but you “don’t listen in”.
?Really. ?You think any judge would have allowed that against the mafis – and they’re clearly bad guys.
And of course the way you got around all that was that you wiretapped every phone for 4 blocks around. Because you didn’t know which phone call might – might – be “useful”.
It isn’t the job of citizens to make things “easy” for the government; it’s the job of the government to do the job without intruding on me and my information – until they have a warrant, sworn to and signed, giving probable cause. It’s that simple.
You may want to look into a case titled Smith v Maryland. The Supreme Court ruled in 1979 that no warrant was required for the police to collect information regarding whom you called and when.
Yes. Because a case from 36 years ago about pen registers legalizes massive collection of data.
That makes perfect sense.
Yes. Because a case from 36 years ago about pen registers legalizes massive collection of data.
That makes perfect sense.
Is the case relevant to Devereaux’s comment?
Is the type of data being collected with a court order by the NSA different than what the Court said no warrant was necessary for?
I am glad you are starting to see this reasonably.
That you find it unacceptable is understandable. But it is constitutional.
By the way, anyone want to actually refer to what Prof. Yoo posted? The court decision is kind of kooky.
I am not a leftist. I am not a libertarian (though I do call myself a fiscal libertarian.) I am not blind to the threat of terrorism, nor am I blind to the threat of a government that has such unrestrained powers as John Yoo is willing to give it.
I am not a leftist. I am not a libertarian (though I do call myself a fiscal libertarian.) I am not blind to the threat of terrorism, nor am I blind to the threat of a government that has such unrestrained powers as John Yoo is willing to give it.
When has Prof. Yoo Expressed a willingness to give the government unrestrained powers?
I don’t know. All I know is about such unrestrained powers as John Yoo is willing to give the government.
All I know is about such unrestrained powers as John Yoo is willing to give the government.
Such as?
Collection of phone metadata without a search warrant.
A more serious problem is that the government still allows homes and office buildings to be constructed without government listening devices in each room. This in effect disarms our nation.
Collection of phone metadata without a search warrant.
You mean the collection of such data with a court order. Perhaps we have different definitions of ‘unrestrained.’
A few thoughts:
Tom,
1. The type of information being collected does not require a warrant in a normal criminal investigation. This program, which admittedly differs in scale from the case in Smith v Maryland but also in purpose, relies on a real court order issued by a real court.
2. The simple answer to that question is because we cannot go back in time. Once a terrorist comes to our attention, that fact may be known to the terrorist and his associates or he maybe dead as in the case of the TX shooters. Let’s take an example of a phone found during a raid in Afghanistan. The terrorist organization knows the site was raided and takes measures to protect those associated with the site. If there was an asset in place in the U.S., that asset may go dark, leave the country, or simply get a different phone. Going forward, the phone retrieved then becomes of little value. If, however, we can look back and develop a picture of the past activities of that asset, the phone may be invaluable.
From reading a court order is required to obtain the data (renewed every 90 days), but actual queries to it are based on “reasonable articulable suspicion,” which does not require a warrant or similar permissions from the court. So yes, the program lies on a real court order, but the queries do not.
I don’t follow this at all. Surely the NSA, FBI, etc. can access the phone’s records — and those of the numbers it called — without collecting it before hand. Police departments do this all the time in criminal investigations.
From reading a court order is required to obtain the data (renewed every 90 days), but actual queries to it are based on “reasonable articulable suspicion,” which does not require a warrant or similar permissions from the court. So yes, the program lies on a real court order, but the queries do not.
I’m not sure that is the case but I may well be wrong. If it is, how would this be different than the pen register at issue in Smith?
I don’t follow this at all. Surely the NSA, FBI, etc. can access the phone’s records – and those of the numbers it called – without collecting it before hand. Police departments do this all the time in criminal investigations.
Only to the extent a phone company maintains them.
Klaatu,
It is exactly that ability to “look back” that is at the heart of the disagreement.
Today we are hunting “terrorists”. But it may not always be so. In the future the government can make all manner of things “illegal” – and then “hunt back” to find examples of it.
I don’t really much care what the government looks at or collects outside the country. Those are not our citizens. Our government can only peripherally impact them. But I very much care what is done here. And note I don’t accept such clear attempts to get around the law as apparently has happened in the past where Britain “spies” on us and we “spy” on them – and then the two intel agencies “exchange” data.
Nor am I very sanguine about the “safeguardd” of the FISA court, which grants something like 98-99+% of all requests. No normal court grants such wide warrant power to the cops. I’m sure this is all very frustrating – to both the cops and you, who both believe they should have unfettered access to EVERYTHING. I don’t, I don’t believe the Founders did, and I don’t believe the constitution without contortion of the type we saw in RvW does either.
Well 1) I think Smith was a bad decision and 2) Smith — as I recall — targeted a single individual. It’s a real logical stretch to argue that a technique to monitor one person over a specific period of time can be used to justify monitoring everyone’s records in perpetuity.
Then require the phone companies to retain them for a given period.
Well 1) I think Smith was a bad decision and 2) Smith — as I recall — targeted a single individual. It’s a real logical stretch to argue that a technique to monitor one person over a specific period of time can be used to justify monitoring everyone’s records in perpetuity.
1. Good or bad, it’s the current standard.
2. We are now discussing individual queries, are we not?
Then require the phone companies to retain them for a given period.
I’m not sure what problem that solves, and beside data center capacity costs money.
Today we are hunting “terrorists”. But it may not always be so. In the future the government can make all manner of things “illegal” – and then “hunt back” to find examples of it.
I don’t really much care what the government looks at or collects outside the country. Those are not our citizens. Our government can only peripherally impact them. But I very much care what is done here. And note I don’t accept such clear attempts to get around the law as apparently has happened in the past where Britain “spies” on us and we “spy” on them – and then the two intel agencies “exchange” data.
Am I to take it that your complaint involves the possibility this capability may be misused in the future? If that is the case, we better strip all capability from the military because it all, including that aircraft you display as your avatar, could at some point in the future be misused against US citizens. Why are you willing to hamper the current war effort by denying intelligence but not firepower?
Nor am I very sanguine about the “safeguardd” of the FISA court, which grants something like 98-99+% of all requests. No normal court grants such wide warrant power to the cops. I’m sure this is all very frustrating – to both the cops and you, who both believe they should have unfettered access to EVERYTHING. I don’t, I don’t believe the Founders did, and I don’t believe the constitution without contortion of the type we saw in RvW does either.
The FISA court is not dealing with police investigations, is it?
No one is asking for unfettered access to everything but merely access to the type of information that is not protected.
The privacy being violated is that of the phone companies, groups of people whose rights have been stripped away entirely. They are forced at gunpoint to turn over these records, and have no recourse.