The Judge and the NSA
In Klayman v. Obama, a lower court can't simply wish away Supreme Court precedent.
Dec. 17, 2013 7:15 p.m. ET
Federal Judge Richard Leon has become a sudden political celebrity after his remarkable opinion holding that antiterror surveillance is unconstitutional and, even more remarkably, enjoining the entire program. If only his legal reasoning were as compelling as his new repute.
Klayman v. Obama was filed in the D.C. district court in the backwash of the Edward Snowden disclosures and claims that the National Security Agency's bulk collection of telephone records violates the Fourth Amendment's ban on unreasonable searches. Judge Leon's 68-page opinion stays his injunction pending appeal.
The largest flaw is that the Supreme Court already considered the constitutional claims at stake here, and Judge Leon simply waves off the relevant precedent of Smith v. Maryland. That 1979 decision by Harry Blackmun —no conservative—held that the warrantless police installation of a pen register that collected telephony metadata was not a search within the meaning of the Fourth Amendment.
While obtaining the content of phone calls requires a warrant, the High Court ruled that people have no "reasonable expectation of privacy" for information about phone calls such as the date, time and length of their calls and the numbers they dial. Such transactional data inevitably belong to the service provider, not to individuals—and the NSA acquiring them is no different than the local police doing it in Smith.
NSA collection may even be less invasive, to the extent the vastness of its database that does not include names or addresses is a greater guarantee of anonymity. Queries of this repository are supervised by the Foreign Intelligence Surveillance Court, and then passed to the FBI to determine if a specific number should be investigated for links to terror cells, with further legal restrictions thereafter.
Judge Leon argues the NSA program now constitutes a search because changes over the last 34 years, including cell phones and the advance of the government's technological capacities, mean that Smith no longer obtains. The High Court's precedents don't have a statute of limitations, but Judge Leon riffs that "I am convinced that the surveillance program before me now is so different from a simple pen register that Smith is of little value."
But Smith did not concern how or how much metadata was collected, only whether collecting it was an illegal search. Contrary to Judge Leon, the reality of the information age is that we all have less expectation of privacy. No one who makes calls and emails on a smart phone, visits an e-commerce website, uses a credit card, drives with an Easy Pass or otherwise benefits from modern technology can truly believe that he is not entrusting data to third parties about personal behavior.
In conjuring his new theory of digital age Fourth Amendment law, Judge Leon also writes that "cell phones have also morphed into multi-purpose devices," such as mapping, text messages and "even lighters that people hold up at rock concerts." He says these devices "now reveal an entire mosaic—a vibrant and constantly updating picture of the person's life."
Well, so what? The NSA isn't surveilling lighters at rock concerts, or creating personal mosaics. The agency is collecting the same basic telephony metadata.
Judge Leon is even less persuasive when he inquires whether the program is reasonable under the Fourth Amendment's "special needs" doctrine. He presumes to write that "the Government does not cite a single instance in which analysis of the NSA bulk metadata collection actually stopped an imminent attack" and "I have serious doubts about the efficacy of the metadata collection program."
The government did cite three disrupted plots that didn't meet Judge Leon's satisfaction. But he seems not to appreciate that stopping a direct attack is not the only test of intelligence. Making terrorists' communications more difficult—for instance, by forcing them to send messages via courier instead of by phone—is also an important asymmetric U.S. warfighting advantage.
This underscores why Article III courts are not supposed to intrude on core executive war powers or to ventilate on the operational usefulness of a major national security program. Judges are neither equipped with the expertise nor allowed by the Constitution to make such determinations, which properly belong to the political branches.
Judge Leon's opinion is likely to be reversed on appeal, but that doesn't mean it can't do political damage in the meantime. It lands amid the renewed left-libertarian campaign to treat terrorists the same as domestic criminals, and with a President who seems unwilling to publicly defend the powers he has used for five years.
Judge Leon seemed to be playing to this chorus with such polemical flourishes as "almost-Orwellian technology" and James Madison "would be aghast." This is the stuff of political campaigns, not judging, especially from a lower federal court. Less excitable appellate judges will have to provide a Constitutional reeducation.
online.wsj.com |
