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The Conceptual Difficulties of the NSA Case
Last week, the Second Circuit Court of Appeals issued an exhaustive opinion in which Judge Gerard Lynch held that the bulk collection of metadata by the National Security Agency (NSA) was not authorized by Section 215 of the Patriot Act. That provision provides in so many words that the Director of the FBI or his designated agent may:
…make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.
At issue in this decision was whether this language was sufficiently broad to permit the vast collection of the metadata and, further, whether and when the individuals who claim grievances for those collection activities are in a position to challenge the standard practice of the NSA under these sections.
The question of standing is one for which current legal doctrine, with its insistence that the applicant show some particularized personal injury, is singularly unsuited. Judge Lynch finessed this problem by indicating that the comprehensive collection of the data means that everyone has some kind of particularized injury under the statute, so that the standing inquiry poses no limitations at all.
For better or worse, this nice sleight of hand reaches the right result. I do not think that the collection of data that has not been used at all counts as any kind of injury. But I also don’t think that the injury requirement makes any sense when any individual wants to challenge the structural integrity of a government program. It is common today under state law for any state citizen or taxpayer (it hardly matters which) to be able to show that the government has exceeded its statutory or constitutional authority. It would be an enormous advance in federal jurisprudence if the Supreme Court would jettison once and for all its tattered standing doctrine, which stands in the path of adopting a similar practice.
There is a further question here: whether Congress can prohibit individuals who are subject to investigation from bringing one of these challenges. There is usually a strong presumption against blocking judicial review unless it is manifestly authorized by statute. Again, I am most unhappy with this basic view. Where there are questions of whether Congress has exceeded its power, the correct response is to let anyone make the facial challenge alleging that the nature of the program exceeds the apparent authority. In that set of circumstances, there is no need to delve into the particular circumstances of any given investigation in order to answer the question. With some high-stepping, Judge Lynch concluded that the simple fact that the Congress authorized the recipients of collection orders (e.g., the telephone companies) to make the challenge did not block individuals whose data was collected from making different challenges on different grounds. Even if Congress was explicit that no such challenges should be brought, I think the federal courts should always be open to a facial challenge intended to expose the excesses of the administrative state.
The hard questions, therefore, are those that go to the merits of the individual claim that the data collection was a serious invasion of privacy that marks an overreaction to the dangers of terrorism. There is, and ought to be, an extended public discussion as to whether this has indeed happened, and just that debate is now being had in Congress given that Section 215 of the Patriot Act is up for renewal or modification by June 1.
In my view, that debate should take place against a different background. I think that the language of the relevant section of the Patriot Act did authorize the NSA’s metadata program. So, on the merits, I think that the Second Circuit was wrong.
The key element in this case rests on the basic design of the Patriot Act, which received scant discussion in the Second Circuit case. The basic plan was to allow the government to collect lots of information about foreign persons and to protect United States citizens and residents by a process of “minimization,” under which listening into conversations with foreigners was to be limited in ways that did not expose American citizens and residents to the prying ears of the NSA unless there was some explicit order based on a particularized suspicion to carry that inquiry forward. The whole point of this rule was to cut down sharply on the dangers that the collection of this information would lead to a wholesale examination of the content of these conversations in ways that would compromise privacy interests unless the government could make a much more exacting case for getting that information.
If I thought that the barrier that had been put into place had been consistently breached by the NSA without response or oversight from the courts, then the direct threat to privacy would lead me to either strike down the program or, more sensibly, to require the NSA to take steps to ensure that these breaches did not occur. Yet there is not one word in the Clapper opinion to suggest that the NSA has not observed the statutory limitations on the operation of its process. The statutory check that has been put into place has thus held.
Knowing that, the correct response is to hold that any form of injunctive relief should be denied because of the want of imminence of an individual injury calling for judicial intervention. Of course, the government could suddenly reverse course and allow for massive abuse of the current data. But if it has not done so since 2001, how likely is it that it will suddenly reverse course?
At this point, the hard question is whether keeping the data makes any sense. In his opinion, Judge Lynch insisted that the key argument against statutory authorization is that information is not “relevant to an authorized investigation (other than a threat assessment)” because its scope is not defined by the occurrence of a particular act, and thus pushes the notion of relevance far wider than is normal. But this view of the matter is consistent with the basic structure of the Patriot Act.
We give the broader power to collect this information because we have no idea of what will prove relevant in any particular case. As long as the information is kept under lock and key, why not collect this information if it could prove relevant at some future time? It is, of course, highly unlikely that any given piece of information collected will prove helpful, but the broad database might prove useful when a major danger arises in the future.
I think that John Yoo, quoting Judge Richard A. Posner, is right to note that these investigations are, by nature, different from those of completed crimes. As long as an authorized investigation is one that is designed to obtain “foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities,” then the generic meaning of the term ‘investigation’ is displaced by the remainder of the sentence. Protection against international terrorism or clandestine intelligence activity is a far broader objective that cuts against the more limited statutory reading.
In this regard, I disagree with Adam Freedman, who quotes Randy Barnett and Jim Harper for the proposition that Section 215 is a modern incarnation of the general warrant used in the English case of Entick v. Carrington, decided in 1765, to ransack the plaintiff’s place of business. In that instance, there were no protections whatsoever with respect to papers that were taken and examined willy-nilly. In this case, there are institutional safeguards in place, which have, to date, held.
Indeed, it is worth asking just what should be done if Section 215 is not renewed. The usual rules for the investigation of completed crimes are woefully narrow, and it is not clear exactly how far they will be extended if the Congress does not act. To be sure, there is nothing about Clapper that precludes a reinstitution of the old Section 215 under words that make it even clearer that it means what it says. But my fear is that the underlying attack on the Section will lead Congress to reject it in favor of something more restrictive than the limitations that the Obama Administration has placed on the current procedures. I think this would be a serious mistake. It is easy to attack government when its safeguards fail. But it is unwise to attack it when they succeed.
Published in General, Law
If it’s not authorized by statute, then it can’t possibly be executed in line with the statutory authorization. Additionally the evidence is that the NSA does a poor job of executing these policies. Both arguments go together.
Nice to see you’re sticking with this loser of an argument too. I’m hardly the only person in the country to have a problem with the NSA’s actions, Klaatu. Claiming that I’m therefore a conspiracy theorist means you think a good portion of the country are conspiracy theorists, including leading Republican Presidential candidates. But keep on!
Huh. So it is. As I’m not a Bircher, I had no idea. And Google’s agnostic.
Regardless, the quote from that article came from a FISA Court opinion via the New York Times (link w/in the article). Is the FISA Court also part of the John Birch Society? The New York Times?
Why don’t you try addressing the facts?
If it’s not authorized by statute, then it can’t possibly be executed in line with the statutory authorization. Additionally the evidence is that the NSA does a poor job of executing these policies. Both arguments go together.
Of course it can. The question of whether the information was collected properly exists independent of whether it is used properly. Your assertion that their is evidence the NSA is doing its job poorly is baseless.
Nice to see you’re sticking with this loser of an argument too. I’m hardly the only person in the country to have a problem with the NSA’s actions, Klaatu. Claiming that I’m therefore a conspiracy theorist means you think a good portion of the country are conspiracy theorists,
Whenever you need to cite the Birchers for support, it creates a rebuttable presumption you are a conspiracy theorist. If Cruz cites the Birchers as well, that will be another reason not to support him.
What fact should address? That the court with oversight responsibility found problems? Sounds to be like evidence the system works.
Right. They have the data illegally, but they’re only using this illegal data legally! Good argument.
See the FISA court opinion above. That’s my base, and they’re the authority. Now you’re starting to sound like a conspiracy theorist.
I never cited Birchers for support. I linked to an article that linked to an article that quoted a FISA judge, who said the NSA are a bunch of serial liars.
You brought the Birchers up.
Right. They have the data illegally, but they’re only using this illegal data legally! Good argument.
Tell me, does it work the other way in your mind as well? If they collect the data legally, does it follow they also use it legally?
See the FISA court opinion above. That’s my base, and they’re the authority. Now you’re starting to sound like a conspiracy theorist.
I have read the opinion. It concerns a different program.
I never cited Birchers for support. I linked to an article that linked to an article that quoted a FISA judge, who said the NSA are a bunch of serial liars.
You brought the Birchers up.
Really? That big quote with the link to the New American wasn’t from you?
When you make these confident-sounding assertions:
It speaks to how reliable the organization is. Answer: not very.
You really can’t be this obtuse, can you? Quoting a judge quoted in the NYT and then quoted in a Bircher magazine isn’t citing the Birchers.
It speaks to how reliable the organization is. Answer: not very.
….
You really can’t be this obtuse, can you? Quoting a judge quoted in the NYT and then quoted in a Bircher magazine isn’t citing the Birchers.
As I mentioned before, context matters. Your Bircher magazine article left out the text it cited appears as a footnote in an unrelated opinion.
You have no idea, and cannot get a good idea of how well the NSA adheres to the program requirements from that quote without placing it in context.
The lack of confidence of some ‘conservatives’ in our soldiers, sailors, airmen, and Marines is disturbing.
All quotes, by definition, are out of context.
They’re conducting metadata surveillance too? I wasn’t aware.
I have confidence in people to the extent they demonstrate they’re worthy of it. That’s pretty conservative, I think.
All quotes, by definition, are out of context.
A good author places his quotes in context.
They’re conducting metadata surveillance too? I wasn’t aware.
You are not aware that the NSA is part of the DoD and is manned by service members?
Or, on the web, provides context via a link, as I did.
Yeesh. Never change, Klaatu. You’re so predicable you make this easy.
So no, the NSA isn’t manned by service members, the CSS is. According to the NSA, of course.
And no, I don’t support our troops when they’re doing something wrong, only when they’re doing something right. Surely you’ve heard of the Nuremburg principles?
I am quite partial to the Oath Keepers organization, however.
Or, on the web, provides context via a link, as I did.
The article you linked to failed to put it into context, as conspiracy theorists often fail to do.
So no, the NSA isn’t manned by service members, the CSS is. According to the NSA, of course.
Yes, the NSA is manned by service members. I’ve been there, I had soldiers who were assigned there prior to working for me and soldiers who were transferred there after. The NSA conducts SIGINT and IA operations. The CSS does crypto work. That one is manned by service members, does not mean the other is not. My soldiers were SIGINTers not code breakers.
You may want to check into the mission of the 704th Military Intelligence Brigade, specifically their subordinate 741st MI BN.
Your ignorance on this matter is astounding.
Gentlemen, this conversation is more than skirting the CoC.
If a conversation isn’t going anywhere, there’s no dishonor in walking away.
So……… How about those Twins! Sure, they had a rough start to the season, but this could be the year.