NSA Defeat Marks Victory for Fourth Amendment…for Now
On Thursday, a three-judge panel for the United States Court of Appeals for the Second Circuit held that Section 215 of the USA PATRIOT Act does not permit NSA bulk collection of domestic calling records. The ruling comes as the Section in question expires on June 1, with much division in Congress on whether or not it should be renewed.
The ruling marks the first time that a federal court has addressed this issue, and creates some question as to what the ruling means for the NSA program as it stands. There was no injunction ordering the program to cease, nor was it ruled un-Constitutional.
This NSA data collection had previously been upheld by the judges on Foreign Surveillance Intelligence (FISA) Court, who hear arguments only from the government and had expressed a willingness to accept an interpretation of Section 215 which the Second Circuit rejected.
Writing for a unanimous court, Judge Gerard E. Lynch held that Section 215 “does not authorize the telephone metadata program.” Lynch also wrote, however, that, “if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”
Based on what we can see from the ruling, it appears that this was decided more on a matter of statutory scope than any substantive concerns in regards to the USA PATRIOT Act. While this successful challenge should give cause for celebration for the moment, the opinion also seems to indicate a belief that the program is Constitutional, as Judge Lynch indicated that, “Perhaps such a contraction [of privacy expectations of all Americans] is required by national security needs in the face of the dangers of contemporary domestic and international terrorism.”
The only reason that Lynch states that he ruled the program illegal is that it goes well beyond the purview of the legislation, and that any program allowing such actions should be designated with “unmistakable language.”
Perhaps fortunate about this statement is that unlikely that such a new version of the NSA program could pass through the House and Senate given the current political climate. However, if in the future there is another terrorist threat, much like the one on September 11, 2001, Americans across the country and in Washington, D.C. may once again engage in the kind of group-think which led to the creation of the current surveillance state.
Worse yet, the Supreme Court (the body in which the current matter may eventually have to be resolved) has historically given great leeway to the government and President on matters which they deem to be concerning “national security.”
For example, in the Prize Cases, it was ruled that President Lincoln’s blockade of Southern Ports during the Civil War was Constitutional. Also ruled Constitutional in Schenck v. United States was the enforcement of President Wilson’s Espionage Act, which convicted individuals of the criminal offense of obstruction of the draft for handing out leaflets encouraging resistance to induction.
Perhaps most infamously, the Supreme Court ruled in Korematsu v. United States that Executive Order 9066, which President Roosevelt used to intern thousands of Japanese Americans, was Constitutional. Most recently, in Holder v. Humanitarian Law Project, the Court ruled that it is Constitutional for the government to prohibit the providing of non-violent material support, including legal services and advice, to designated “terrorist organizations.”
In other words, it could be a long road ahead before the Supreme Court ultimately rules on the Constitutionality of the NSA spying program, and even then, there is no guarantee that the Second Circuit’s decision means that the Fourth Amendment will ultimately prevail. Based on the information and precedents that we have, it could very well be the case that the NSA spying program will be ruled Constitutional in a 5-4 decision with Justice Kennedy joining the “conservative” bloc against the “liberals.”
It is for these reasons that while the Second Circuit’s decision should be applauded, this battle for liberty is far from over. Accordingly, we must remain vigilant in our defense of the Fourth Amendment against the surveillance state.
