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The Week America Came In From the Cold

The NSA went from playing offense to defense after a federal judge ruled its surveillance program is unlikely unconstitutional. In 2014 and beyond, nothing will ever be the same in the national debate we are having over domestic surveillance.

Published: December 20, 2013

To understand where we end this fascinating week in the annals of domestic surveillance it’s important to remember where we began it. On Sunday night, the beleaguered National Security Agency, in a controversial piece that aired on 60 Minutes, justified as best it could on camera some of its most aggressive programs. The best defense is a good offense, the NSA’s marketing geniuses must have concluded, and whatever one thinks of John Miller, and his work, it is indisputable that what aired that night offered the most positive side of the NSA that anyone had ever before seen.

Almost immediately, however, came a strong, official dissent. U.S. District Judge Richard Leon, an appointee of President George W. Bush, issued a 68-page ruling in which he concluded that the government’s bulk metadata program, in which billions of telephone records are collected, stored, and analyzed, likely violates Fourth Amendment protections against unreasonable searches and seizures. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-collection and retention of personal data on virtually every citizens,” Judge Leon wrote.

And then, within 48 hours, came another blow to the legal and political legitimacy of the NSA’s surveillance programs. A panel of national security experts, commissioned by the White House in August to review the government’s domestic spying efforts, made public their findings, which include 46 reform recommendations that would transform much of the work of the nation’s surveillance officials. Many of those reforms are manifestly sensible and all rejected the pablum the NSA had offered in its own defense. In a perfect world, the officials who looked so glib Sunday night would now have to go back before the cameras to answer all of the questions that have arisen since then.

So the week began with the NSA on a public relations offensive and it ends with the NSA on the defense in court, within the executive branch, and even to some degree on Capitol Hill, where uneasy lawmakers now are rethinking their support. What this portends for 2014 ought to be as clear as the end result here is murky. We will see a year’s worth of litigation, in Klayman v. Obama, Judge Leon’s case. We will see a year’s worth of debate on Capitol Hill, at least, as Edward Snowden’s disclosures continue to trickle out. And at some point in the coming months the White House will have to determine what it wants to do with all those substantive recommendations.

You can count me among those who believe the ultimate reforms here, whatever they may be, will come as a result of the political process and not from the nation’s federal courts. Judge Leon deserves great credit for giving voice to the concerns so many of us have about the scope (and effectiveness) of these particular surveillance programs. In addition to casting doubt upon the sweeping pronouncements government lawyers made in defense of the surveillance, his ruling deprives Snowden’s harshest critics, and the surveillance program’s most ardent defenders, of their ability to describe what happened this past year as some sort of black-and-white affair. Snowden may have violated federal law. But would 12 American jurors ever unanimously convict him of a crime for leaking the existence of a secret spy program found to be unconstitutional? Don’t bet on it.     

Yes, the law is unconstitutional. But the judges of the D.C. Circuit Court of Appeals, and the justices of the United States Supreme Court, are unlikely to say so. Judge Leon’s ruling almost certainly will be overturned. Either on standing grounds — that the plaintiffs in the case don’t have a right to challenge the bulk metadata program. Or on statutory grounds — that the plaintiffs must challenge the program in “national security” courts.” Or, finally, on constitutional grounds — that either there is no “search” here under the Fourth Amendment or the government’s interest in national security trumps any individual expectation of privacy anyone might have in metadata.

The reform recommendations made public Wednesday, on the other hand, won’t (at least initially) be judged by life-tenured jurists. They’ll be judged instead by national politicians who have to answer directly to a roiling nation. How exactly is President Obama going to reject those recommendations, especially given how similar they are to the reforms Sen. Barack Obama supported in 2007–2008? And which national security official is going to stand up and respond with a straight face to the line of the week, uttered by the ubiquitous Richard Clarke, who said: “What we’re saying is, just because we can doesn’t mean we should.”

Whatever happens from here, in 2014 and beyond, nothing will ever be the same in the grand, national debate we are having over domestic surveillance. The government will have to more fully justify its national security arguments in court — thanks to Judge Leon. Oversight functionaries of the surveillance programs, like Sen. Dianne Feinstein of California, will have to better answer for the pervasive lack of government transparency and accountability identified Wednesday by the White House panel. And the next time NSA officials show their faces before the cameras the questions surely will be different. A lot can change in a week.

Photo by a_ninjamonkey.