Constitution Check: Who has the next move on telephone spying, Congress or the courts?
Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the looming June 1 deadline facing Congress about NSA spying programs, and the core constitutional issues in the debate.
THE STATEMENT AT ISSUE:
“The Foreign Intelligence Surveillance Court had given the government a deadline of last Friday [May 22] to file a new application to extend the bulk phone records program for 90 days. Given the disarray in the Senate and the looming [June 1] deadline, the Justice Department did not file, a senior Administration intelligence official said Sunday, speaking on condition of anonymity. Obama Administration officials said Saturday that the government was starting to take steps to shut down the bulk phone records program by the deadline…As things stand, there are neither 60 votes [in the Senate] to extend the existing program, nor 60 to enact legislation known as the USA Patriot Act, which would replace it with one in which the bulk records stay in the phone companies’ hands.”
– New York Times reporter Charlie Savage, in a story in the newspaper on May 25, after the Senate recessed until Sunday, May 31, following a refusal of the chamber to extend – even for one day beyond the June 1 deadline — the existing National Security Agency telephone data sweeps. The Senate also refused to accept a House-passed bill to modify the program in ways that have satisfied even some of the program’s strongest critics.
WE CHECKED THE CONSTITUTION, AND…
The constitutionality of the federal government’s massive sweeps of telephone calling data, including electronic collection of all calls made by Americans even if they are suspected of doing nothing wrong, remains an open question as Congress wrestles with the policy choice of altering the program, continuing it as is, or letting it die.
Earlier this month, a federal appeals court found the program had not been legally authorized by Congress, adding to the sense of urgency as the deadline for the program’s end neared. But the decision actually left dangling the question of the program’s constitutionality, under the privacy guarantees of the Fourth Amendment.
Because that court (the U.S. Court of Appeals for the Second Circuit) did not immediately order a halt to the program, saying that it would give Congress a chance to react first, the lawmakers on Capitol Hill have gained some time to ponder a next step. Meanwhile, the government this past weekend began the process of shutting down the data gathering.
The June 1 deadline, with the potential end of the program now in sight, is thus the source of greatest pressure on Congress to make up its mind. The appeals court has shown that it has some patience in dealing with this controversy as a judicial matter. Ordinarily, if a government program is found to be illegal, a court will order it stopped. But the appeals court held off, citing the sensitivity of the government’s need to deal with global terrorism threats.
The process of justice also does not usually move very quickly. Even though the appeals court ruled on May 7, the case that led to that decision has not yet been formally returned to the federal trial judge in New York City who was given the task by the appeals court to decide whether the courts should take further action, even as Congress debates.
If it should turn out that Congress decides to extend the bulk data collection without any change at all, that will then set up a review in the federal courts of whether it is unconstitutional, even if it then had the approval of Congress. (If the
program is modified by Congress, that very likely would change the legal and constitutional landscape for the program.)
The appeals court, in at least mentioning the potential constitutionality question, said the program as the government had developed it without Congress’ approval was so sweeping that it should not go forward at least until there was a full debate in Congress. That, of course, is what has been happening in both chambers of Congress in recent weeks – even if, for now, the legislative process has clearly stalled.
If such a full legislative exploration occurred, the appeals court said, and if Congress deemed the program to be necessary to the nation’s security, that “is not irrelevant to its constitutionality. The endorsement of the Legislative Branch of government provides some degree of comfort in the face of concerns about the reasonableness of the government’s assertions of the necessity of the data collection. A congressional judgment as to what is ‘reasonable’ under current circumstances would carry weight – at least with us, and, we assume, with the Supreme Court as well.”
The constitutional issues, it added, “are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary.”
Those remarks were a clear reminder that the constitutional test for a government program that is challenged under the Fourth Amendment is the rather opaque one of “reasonableness.” That is a sufficiently tolerant standard that the benefit of the doubt tends to go with the government.
Even so, there are repeated comments in the appeals court’s lengthy opinion about how massive the intrusion into telephone privacy has been under the National Security Agency’s data sweeps. One of the judges on the circuit court’s three-judge panel did write a separate opinion to note that this intrusion had occurred with the ongoing approval of the special secret court that must give authorization for it (the Foreign Intelligence Surveillance Court).
It is quite clear, in fact, that the special court has considered and, for the most part, rejected the privacy challenges that have been raised about the bulk data collection. And that fact has contributed to some of the privacy concerns that have built up a significant level of opposition in Congress to the program as it currently exists.
The appeals court’s decision finding the program to be unauthorized by Congress has been used to advantage by critics during the congressional debate. If the lawmakers read that opinion with close attention, thought, they will find that, even while striking it down while leaving the constitutional question hanging over Congress’s deliberation, it has clearly suggested that the judges retain some faith in the legislative process.
That, of course, raises the question of whether this will embolden the lawmakers to belittle the privacy concerns, or will encourage them to take those concerns seriously.
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