In the six months since Edward Snowden began leaking details about the National Security Agency’s efforts to collect telephone data on a colossal scale, NSA officials have repeatedly asserted that the program is on firm legal ground. Now U.S. District Court Judge Richard Leon has ruled that it probably infringes on the Fourth Amendment, calling it “almost Orwellian” in scope.
How could a program approved by all three branches of government (as intelligence officials like to say) be so clearly unconstitutional in the eyes of a federal judge? Here’s one possibility: The Federal Intelligence Surveillance Act court, which has continually reauthorized the NSA’s telephone data collection, is hearing only one side of the argument. When the government argues for surveillance authority, it must show only probable cause that the target has some connection to a foreign government or terrorist group, a very low threshold. As far as we know, no one argues against the government.
The judges should be hearing from more than one side. On Dec. 18 a presidential panel reviewing U.S. surveillance policies recommended that Congress create the position of a public interest advocate “to represent the interests of privacy and civil liberties” before the FISA court. Orin Kerr, a law professor at George Washington University, has argued that the oversight section of the U.S. Department of Justice’s national security division should be able to review applications before the court and oppose any it deems improper. Others have suggested that FISA judges should be able to tap outside lawyers to challenge the government in cases that raise new legal issues and to appeal decisions in the government’s favor. Any of these ideas would be an improvement.
The public has no idea whether the NSA’s programs are doing much to keep us safe. What it does know is that, with each new revelation, these programs are creating worldwide mistrust of the U.S. government. The trade-off may, in the end, be worth it. But the best place to determine that balance is in the courts in a properly adversarial contest.