- If the powers that be want the surveillance to continue, it will continue because legal justification and constitutional precedence remain intact
By Jon E. Dougherty
On Thursday a federal appeals court ruled that the NSA’s wholesale collection of Americans’ phone and Internet communications actually is not authorized by the controversial USA Patriot Act, as current and prior administrations have argued.
As reported by The Wall Street Journal:
The ruling greatly increases the pressure on Congress to make significant changes—or end outright—the surveillance program. The judges not only ruled against the phone program, but sharply criticized many of the legal theories upon which the U.S. government has built out its surveillance capabilities since the 2001 terror attacks.
The Obama and Bush White Houses have used the Patriot Act, in part, to task the nation’s top spy agency with collection of nearly every phone call made in the U.S., and then entering that information into a database to search for possible contacts among potential terrorists. The NSA program gathers metadata involving records of which numbers are called, what time they are called, and how long those calls last, but not the actual contents of the conversations.
But both administrations have also justified the data collection under a president’s Article 2, Sect. II powers as commander-in-chief of the armed forces. More on that in a moment.
First, the subject at hand – the NSA’s program, and the court’s ruling.
Americans learned in December 2005 via The New York Times that President George W. Bush, shortly after the 9/11 attacks, issued a secret order tasking the NSA with spying on Americans’ phone calls, including those that originated within the U.S. (prior, the NSA focused primarily on foreign communications, per its founding mandate) – and, more importantly, without a search warrant from the highly secretive Foreign Intelligence Surveillance Act Court (FISA).
Much of the program remained intact, even after it was revealed in news reports, though in 2006, the Bush administration, seeking to give the program firmer legal footing, placed it under authority of the FISA court. However, as we learned in 2013 from former NSA contractor Edward Snowden, the agency’s data collection program had become quite pervasive.
That a federal three-judge panel in New York would rule now that the programs are illegal under provisions of the Fourth Amendment is significant for a couple of reasons.
For one, federal courts have historically been deferential to Congress and the Executive branch over issues concerning national security. Judges, like most congressmen, do not want to be seen as responsible for curbing the government’s power to protect the nation. Furthermore, most federal judges don’t fancy themselves as national security experts (and by and large most are not – even those chosen to sit for single seven-year terms on the FISA court). Indeed, a lower federal court had already ruled the data collection program constitutional.
For another, the decision comes at a precarious moment in the Patriot Act’s history: It’s most controversial provisions, those laid out in Sect. 215 – the section cited by the Bush and Obama administrations as giving them authority to conduct the surveillance programs – are up for renewal. If Congress doesn’t act, then these provisions will expire June 1.
If Congress does act to change Sect. 215, then it’s likely the current case simply dies on the vine; if Congress fails to make those changes and reauthorizes the Act as-is, then the current will probably find its way to the U.S. Supreme Court, as the surveillance programs continue.
If that happens and the Supreme Court rules the widespread data collection program unconstitutional, it still might not end.
For one, it’s because the Constitution has never been crystal clear on the limits of presidential power in times of war, as has been debated by leading scholars and lawmakers. Abraham Lincoln was the first to prove that.
But also, recall that the “war on terror,” which began with the 2001 Authorization for Use of Military Force remains in effect; that legislation has not been repealed, and it is the legislation that has been used repeatedly by the Bush and Obama administrations as justification for the President’s Surveillance Program.
Congress may choose to revise the Patriot Act’s controversial Sect. 215 as a sop to public pressure and the current federal court decision (though reports claim the purported replacement legislation, the USA Freedom Act, really just reauthorizes widespread surveillance); or, if not, the Supreme Court may eventually strike it down as a violation of the Fourth Amendment.
But without a sunset or repeal of the AUMF, or an eventual Judicial decision regarding a president’s wartime powers, don’t expect the NSA’s domestic surveillance programs to go away anytime soon.
The point is, if the powers that be want the surveillance to continue, it will continue because additional claimed legal justification (and, possibly, constitutional precedence) will still be intact via the AUMF – and that piece of legislation is not under consideration by the Judicial branch, and not likely to ever be.
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