Not that the ruling by the three-judge panel of the Second Circuit in New York lacks for errors of law and fact. The panel found that when the Patriot Act, passed in the aftermath of 9/11, permitted the government to subpoena business records “relevant” to an authorized investigation, the statute couldn’t have meant bulk telephone metadata—consisting of every calling number, called number, and the date and length of every call.
That ends up subpoenaing everything, the panel reasoned, and what is “relevant” is necessarily a subset of everything. In aid of this argument the panel summons not only the dictionary definition of an investigation, but also the law that relates to a grand-jury subpoena in a criminal case, which limits the government to “relevant” information.
Yet the judicial panel failed to consider the purpose of the statute it was analyzing. The Patriot Act concerns intelligence gathering, which is forward-looking and necessarily requires a body of data from which potentially useful information about events in the planning stage may be gathered. A grand jury investigation, by contrast, is backward-looking, and requires only limited data relating to past events. A base of data from which to gather intelligence is at least arguably “relevant” to an authorized intelligence investigation.
Equally serious an error is the panel’s suggestion that many, perhaps most, members of Congress were unaware of the NSA’s bulk metadata collection when they repeatedly reauthorized the statute, most recently in 2011. The judges suggest that an explanation of the program was available only in “secure locations, for a limited time period and under a number of restrictions.” In addition to being given briefing papers, lawmakers had available live briefings, including from the directors of the FBI and the National Intelligence office.
In any event, no case until the judicial panel’s ruling last week has ever held that a federal tribunal may engage in telepathic hallucination to figure out whether a statute has the force of law.
The panel adds that because the program was highly classified, Congress didn’t have the benefit of public debate. Which is to say, no truly authorized secret intelligence-gathering effort can exist unless we let in on the secret those from and about whom the intelligence is to be gathered. Overlooked in this exertion is the Founders’ foresight about the need for secrecy—expressed in the body of the Constitution in the requirement that each legislative house publish a journal of its proceedings “excepting such Parts as may in their Judgment require Secrecy.”
But isn’t the misbegotten ruling by this trio of federal judges correctable on appeal? Or won’t it be made moot because the Patriot Act must be reauthorized by June 1 and Congress will either enact substitute legislation, or let the statute lapse, or simply reauthorize it with full knowledge of how the program works? Here the Second Circuit’s opinion is problematic in ways not immediately apparent.
The judges didn’t reverse the lower-court opinion upholding the NSA data-collection program and order the program stopped. Rather, the panel simply vacated that opinion and sent the case back to the lower court to decide whether it is necessary to stop the program now. By rendering its order in a non-final form, the panel made it less likely that the Supreme Court would hear the case even if asked, because the justices generally won’t take up issues that arise from non-final orders.
Moreover, the opinion tries to head off the argument that if Congress reauthorizes the Patriot Act in its current form, lawmakers will have endorsed the metadata program. The panel writes: “If Congress fails to reauthorize Section 215 itself, or re-enacts Section 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end.” That is, unless Congress adopts the panel’s view of what Congress has done, rather than its own view of what it has done, the program must end.
Then there is the opinion’s timing. The case was argued eight months ago. This opinion, or one like it, easily could have been published in time for orderly review by the Supreme Court so the justices could weigh matters arguably critical to the nation’s security. Or the panel could have followed the example of the D.C. Circuit and the Ninth Circuit—which have had cases involving the NSA’s surveillance program pending for months—and refrained from issuing an opinion that could have no effect other than to insert the views of judges into the deliberations of the political branches.
What to do? An administration firmly committed to preserving all surveillance tools in a world that now includes al Qaeda, Islamic State and many other terror groups, would seek a quick a review by the Supreme Court. But President Obama has already stated his willingness to end bulk collection of metadata by the government. Instead, he wants to rely on a Rube Goldberg procedure that would have the data stored and searched by the telephone companies (whose computers can be penetrated and whose employees have neither the security clearance nor the training of NSA staff).
The government, under Mr. Obama’s plan, would be obliged to scurry to court for permission to examine the data, and then to each telephone company in turn, with no requirement that the companies retain data and thus no guarantee that it would even be there. These constitute burdens on national security with no meaningful privacy protection.
The president’s plan would make protecting national security more difficult. We would all have been better off if the Second Circuit panel had avoided needless complication and instead emulated the judicial modesty of their Ninth Circuit and D.C. Circuit colleagues.
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Mr. Mukasey served as U.S. attorney general (2007-09) and as a U.S. district judge for the Southern District of New York (1988-2006).
http://www.wsj.com/articles/impeding-the-fight-against-terror-1431471515?tesla=y
Photo: David G. Klein