Contributor Post Created with Sketch. What the Second Circuit Got Right

 

1154px-National_Security_Agency_headquarters,_Fort_Meade,_MarylandI agree with much of what John Yoo says in his recent post about “the blindness of the left… to the dire threat of foreign terrorism that has appeared again on our shores.” Although I disagree with his conclusions, John does an excellent job of laying out the policy reasons why he thinks the federal government should engage in bulk data collection.

But the policy arguments should be irrelevant to our analysis of the Second Circuit’s decision in ACLU v. Clapper. The question before the Court was simply whether the bulk data collection program is authorized under statutory and constitutional provisions. Surely, conservatives don’t want judges substituting their own policy preferences for the plain language of the law. And on the basic legal question before it, the Second Circuit got it right.

Section 215 of the PATRIOT Act allows the government to seize “any tangible things” but only when the FBI can establish that the “things” sought are “relevant to an authorized investigation.” The bulk data collection, however, is not connected to any ongoing investigation: it is data that is collected in the event that it may come in useful in some future investigation (and, in the meantime, is shared with other law enforcement officials to make arrests that they couldn’t make if they had to get warrants). So, on the plain language of the statute, the government’s program fails, as has been argued by Randy Barnett and Jim Harper, not exactly wild-eyed liberals.

Even if you could shoehorn the bulk data collection program into Section 215, I agree with the Court that the program raises serious constitutional issues (although the court did not have to decide the constitutional question given its decision on the Section 215). Barnett and Harper put it succinctly:

The Fourth Amendment requires the things to be searched or seized under a warrant to be described “particularly.” But the order issued to Verizon under the NSA data collection program requires the company to produce “on an ongoing daily basis… all call detail records.” Because they are not “particular,” such orders are the modern incarnation of the “general warrants” issued by the Crown to authorize searches of American colonists. As with general warrants, blanket seizure programs subject the private papers of innocent people to the risk of searches and exposure, without their knowledge and with no realistic prospect of a remedy.

No doubt, the terrorist threat is serious, but every serious departure from the Constitution has been justified as a necessary response to some emergency or another, from the Sedition Act to the New Deal to the internment of Japanese Americans, etc.

But the constitutional issues are for another day. The first step is for Congress to set the policy by either abolishing, or not, the bulk data collection program. If the program is expressly authorized by Congress, then the constitutional question will be ripe and we can see which view of the Fourth Amendment prevails.

Image Credit: “National Security Agency headquarters, Fort Meade, Maryland” by Unknown – http://www.nsa.gov/about/photo_gallery/gallery.shtml. Licensed under Public Domain via Wikimedia Commons.

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  1. Marion Evans Inactive

    As is often said on Ricochet, freedom is more important than security. Think of it this way. It is true that foreign terrorists can kill thousands of us, perhaps even hundreds of thousands with WMDs. But historically, the main threats to people have come from their own governments, not from foreign adversaries. Governments have killed tens of millions of their own people.

    That hasn’t been true of the US government but that is no reason to be complacent about the future. We can’t get on a slippery slope where government takes away more of our freedoms and gets the power to one day turn against us en masse, in the name of ‘state security’.

    I am writing this, not from a relatively sleepy place in the middle of the US, but from New York, a former terrorist target.

    • #1
    • May 8, 2015, at 6:05 AM PDT
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  2. Aaron Miller Member
    Aaron Miller Joined in the first year of Ricochet Ricochet Charter Member

    Does the reference to “tangible” things rule out digital records? Otherwise, what was the purpose of including the word?

    And is there any judicial route to stop the sharing of NSA data with criminal law enforcers? If police use the data only to know where to look and don’t use it as direct evidence in court, can there be any appeal?

    • #2
    • May 8, 2015, at 6:10 AM PDT
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  3. Tom Meyer, Common Citizen Contributor

    Aaron Miller:And is there any judicial route to stop the sharing of NSA data with criminal law enforcers? If police use the data only to know where to look and don’t use it as direct evidence in court, can there be any appeal?

    Well, if the government had its way, the case would have been dismissed on standing, on the grounds that no one could articulate an individual harm. The difficulty of demonstrating how a clandestine agency that asserts the power to collect and search — at its discretion — all metadata targeted you personally was lost on the defendants, but not (fortunately) the judges.

    • #3
    • May 8, 2015, at 6:28 AM PDT
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  4. Tom Meyer, Common Citizen Contributor

    As I mentioned in my quick post on the subject, this really underscores to me how badly broken communications have been between citizens and national security agencies, as mediated by their representatives. Given the nature and importance of the matter, it’s not terribly surprising, but it is distressing.

    The following is, obviously, over-simplified, but I think gets to some of the disconnect:

    National Security Agencies:

    You told us to protect you. It’s a hard job, but we care about our fellow citizens and we’re doing the best we can. Now, you want to take away the tools that help us meet the goals you set. That’s how we got here in the first place and you seem to want to repeat it.

    Citizens:

    You screwed-up fourteen years ago, but we trusted you when you said you wouldn’t let it happen again. In the last three years, however, we’ve learned that — in the name of our security — you’ve been doing things we did not approve and would not have approved had we known about them. In the meantime, easy cases seem to be sneaking past you.

    • #4
    • May 8, 2015, at 6:32 AM PDT
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  5. Tuck Inactive

    From the Daily Shot today:

    “McConnell and North Carolina Senator Richard Burr, chairman of the Senate Intelligence Committee, had previously introduced legislation to maintain the program, but if that passes now, it will require the Supreme Court to reverse Thursday’s decision to go into effect.”

    Fred’s mistaken. The decision does not “find” anything, it merely observes that there’s no statutory authorization for what the NSA is doing. It’s an observation.

    There’s nothing to reverse, in other words.

    If Congress passes statutory authorization as proposed above, then we could have a decision about the Fourth Amendment issues.

    BTW, I am not a lawyer. ;)

    • #5
    • May 8, 2015, at 6:39 AM PDT
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  6. David Carroll Thatcher
    David Carroll Joined in the first year of Ricochet Ricochet Charter Member

    The law concerning standing to bring a challenge frequently serves to protect the government from scrutiny of its unlawful or unconstitutional actions. I am pleased that it did not. Yet. Who knows what the Supreme Court will do?

    • #6
    • May 8, 2015, at 7:26 AM PDT
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  7. Ontheleftcoast Member

    Marion Evans:As is often said on Ricochet, freedom is more important than security. Think of it this way. It is true that foreign terrorists can kill thousands of us, perhaps even hundreds of thousands with WMDs. But historically, the main threats to people have come from their own governments, not from foreign adversaries. Governments have killed tens of millions of their own people.

    That hasn’t been true of the US government but that is no reason to be complacent about the future. We can’t get on a slippery slope where government takes away more of our freedoms and gets the power to one day turn against us en masse, in the name of ‘state security’.

    I am writing this, not from a relatively sleepy place in the middle of the US, but from New York, a former terrorist target.

    From New York, which was successfully attacked by terrorists in 2011 and an ongoing target on which a number of terrorist attacks have since been thwarted.

    • #7
    • May 8, 2015, at 7:35 AM PDT
    • Like
  8. Tuck Inactive

    David Carroll:The law concerning standing to bring a challenge frequently serves to protect the government from scrutiny of its unlawful or unconstitutional actions. I am pleased that it did not. Yet. Who knows what the Supreme Court will do?

    Richard Epstein has discussed this at length in a few podcasts. There is no “law” concerning standing, it’s judge-created nonsense [pdf] designed to protect the Progressives:

    While the standing doctrine is one of the most widely theorized and criticized doctrines in U.S. law, its origins remain controversial. One revisionist view espouses that New Deal progressive justices purposely invented the standing doctrine to insulate administrative agencies from judicial review….”

    But adopted by patsy Conservatives, who seem to think their job is to uphold Progressive lawlessness.

    • #8
    • May 8, 2015, at 7:38 AM PDT
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  9. Adam Koslin Member

    Tuck:

    But adopted by patsy Conservatives, who seem to think their job is to uphold Progressive lawlessness.

    Yes. The job of conservatives is to be skeptical about change. We know what the status quo looks like, and broadly speaking, it is good. Moreover, even in the event the status quo went very wrong, changing things often leads to greater harm through the tragic law of unintended consequences. It doesn’t matter whether the status quo was originally created by progressives or conservatives. Skepticism about change is oriented towards the present and future, not towards the past.

    • #9
    • May 8, 2015, at 9:37 AM PDT
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  10. Marion Evans Inactive

    Ontheleftcoast:

    Marion Evans:As is often said on Ricochet, freedom is more important than security. Think of it this way. It is true that foreign terrorists can kill thousands of us, perhaps even hundreds of thousands with WMDs. But historically, the main threats to people have come from their own governments, not from foreign adversaries. Governments have killed tens of millions of their own people.

    That hasn’t been true of the US government but that is no reason to be complacent about the future. We can’t get on a slippery slope where government takes away more of our freedoms and gets the power to one day turn against us en masse, in the name of ‘state security’.

    I am writing this, not from a relatively sleepy place in the middle of the US, but from New York, a former terrorist target.

    From New York, which was successfully attacked by terrorists in 2011 and an ongoing target on which a number of terrorist attacks have since been thwarted.

    Is this to counter my point or reinforce it? The odds of any of us dying in a terror attack are still minuscule, even if some of those plots had been successful.

    • #10
    • May 8, 2015, at 9:39 AM PDT
    • Like
  11. Tuck Inactive

    Adam Koslin:

    Tuck:

    But adopted by patsy Conservatives, who seem to think their job is to uphold Progressive lawlessness.

    Yes. The job of conservatives is to be skeptical about change. We know what the status quo looks like, and broadly speaking, it is good. Moreover, even in the event the status quo went very wrong, changing things often leads to greater harm through the tragic law of unintended consequences. It doesn’t matter whether the status quo was originally created by progressives or conservatives. Skepticism about change is oriented towards the present and future, not towards the past.

    Sorry, if the Court makes a decision that is in contravention of the Constitution, a “Conservative” Court should overturn that decision, and return us to the Constitution. They sign an oath to uphold the Constitution, not to uphold prior court decisions.

    They’re not being Conservative at all. They’re not conserving the Constitution, or the law.

    • #11
    • May 8, 2015, at 9:55 AM PDT
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  12. Bob Wainwright Member

    The boards of Verizon, ATT and the rest should, out of a sense of civic duty, adopt a policy that they will voluntarily offer the NSA access to their metadata without waiting for warrants or other legal requirements. The Fourth Amendment issue would thereby become moot. The security at issue here is the security of the American people, and it’s a shame that courts, and not the people, are able to determine how it can be safeguarded.

    • #12
    • May 8, 2015, at 10:26 AM PDT
    • Like
  13. Tuck Inactive

    Bob Wainwright:The boards of Verizon, ATT and the rest should, out of a sense of civic duty, adopt a policy that they will voluntarily offer the NSA access to their metadata without waiting for warrants or other legal requirements. The Fourth Amendment issue would thereby become moot. The security at issue here is the security of the American people, and it’s a shame that courts, and not the people, are able to determine how it can be safeguarded.

    There are two issues:

    1. Is it legal to collect the data.

    2. Is it effective.

    Your proposal would address 1., but the answer to 2. also appears to be No.

    Even worse, we have know that the NSA is sharing this data with law-enforcement agencies in such blatant contravention of the Constitution that they lie about doing it to the courts.

    The NSA is not a trustworthy organization.

    • #13
    • May 8, 2015, at 10:31 AM PDT
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  14. Adam Koslin Member

    Tuck:

    Adam Koslin:

    Tuck:

    But adopted by patsy Conservatives, who seem to think their job is to uphold Progressive lawlessness.

    Yes. The job of conservatives is to be skeptical about change. We know what the status quo looks like, and broadly speaking, it is good. Moreover, even in the event the status quo went very wrong, changing things often leads to greater harm through the tragic law of unintended consequences. It doesn’t matter whether the status quo was originally created by progressives or conservatives. Skepticism about change is oriented towards the present and future, not towards the past.

    Sorry, if the Court makes a decision that is in contravention of the Constitution, a “Conservative” Court should overturn that decision, and return us to the Constitution. They sign an oath to uphold the Constitution, not to uphold prior court decisions.

    They’re not being Conservative at all. They’re not conserving the Constitution, or the law.

    It depends what the decision is. There certainly exist fringe cases where strict adherence to the constitution would mean the destruction of the country. No political document is a suicide pact.

    • #14
    • May 8, 2015, at 10:49 AM PDT
    • Like
  15. Tuck Inactive

    Adam Koslin:

     There certainly exist fringe cases where strict adherence to the constitution would mean the destruction of the country. No political document is a suicide pact.

    That phrase was first used in 1949 by an FDR appointee to the court, in a dissent. As far as I’m aware, there’s no concrete example of it being true.

    It’s a nice phrase, but should have no bearing on Constitutional interpretation.

    • #15
    • May 8, 2015, at 12:37 PM PDT
    • Like
  16. Ontheleftcoast Member

    Marion Evans:

    Ontheleftcoast:

    Marion Evans:As is often said on Ricochet, freedom is more important than security. Think of it this way. It is true that foreign terrorists can kill thousands of us, perhaps even hundreds of thousands with WMDs. But historically, the main threats to people have come from their own governments, not from foreign adversaries. Governments have killed tens of millions of their own people.

    That hasn’t been true of the US government but that is no reason to be complacent about the future. We can’t get on a slippery slope where government takes away more of our freedoms and gets the power to one day turn against us en masse, in the name of ‘state security’.

    I am writing this, not from a relatively sleepy place in the middle of the US, but from New York, a former terrorist target.

    From New York, which was successfully attacked by terrorists in 2011 and an ongoing target on which a number of terrorist attacks have since been thwarted.

    Is this to counter my point or reinforce it? The odds of any of us dying in a terror attack are still minuscule, even if some of those plots had been successful.

    Neither. But “former” target is inaccurate.

    • #16
    • May 8, 2015, at 7:59 PM PDT
    • Like
  17. donald todd Inactive

    As the people in the Soviet Union discovered, state terrorism is worse than other forms of terrorism because the state is the terrorist and the individual has no recourse. The quality of the Soviet courts maintained that fact by offering the fiction of a fair trial.

    The collection of data for back reference in an effort to make a case should not be allowed to occur. If the law is properly understood, and a good lawyer knows that such info is being misapplied in a court, that should stamp out that business.

    I would however think that a jury – assuming a jury trial – would be aware of the fact that invalid data was provided and, despite the warning of the judge, the individual juror might apply that invalid data in the silence of his or her own mind when trying to understand what judgment is right. At that point the juror is framing a question about the rights of the accused versus the need to protect this country and its citizens, possibly including the juror’s own family and friends.

    One might suspect that the juror is not thinking about his or her own rights should he or she be subjected to such a trial with invalid data being presented.

    • #17
    • May 9, 2015, at 6:32 AM PDT
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