The Secret Law Behind NSA's Verizon Snooping
How, exactly, could the government order a Verizon division to provide records of all calls -- that's right, all -- to or from the U.S. on an ongoing basis? The answer is secrecy -- but not just in the way you think.
It's not only that the highly classified request was made to and approved by a highly classified court. But the legal interpretation of the 2001 Patriot Act that the court appears to have used was itself classified. In other words, there was no way for the public to know what the courts believed the law to mean. And that reality runs counter to the most basic principles of democracy and the rule of law.
In a democracy, the laws are and must be public. Our representatives pass them and our executive branch puts them into effect publicly -- and, ordinarily, the courts supervise both those processes in public as well. Limited exceptions are appropriate when the government is getting a warrant, so that the target of an investigation doesn't have advance warning. But in criminal cases, at least, the target will be able to challenge the legality of the warrant later, when he is charged.
National security cases are more complicated. Often there will never be a trial, so no public challenge to legality is likely. That leaves it to telecommunications providers like Verizon to bring challenges. This isn't perfect -- corporate interests are different from individual ones -- but it is better than nothing. And, in principle, it shouldn't be deeply troubling when a specially cleared court considers whether a secret government request complies with the law.
What happened in this case is different -- and much more threatening to democratic values. Section 215 of the Patriot Act says the government can order turnover of "any tangible things" for an investigation to protect against international terrorism or clandestine spying, provided only that the activities under investigation aren't solely protected by the First Amendment. Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant -- which is to say, everything. Like metadata for every call every day and every second in the U.S.
When the Foreign Intelligence Surveillance Act court granted the order here -- and there must surely be similar orders for all the other telecom carriers -- it appears to have applied the broadest possible reading of the law. That reading might be correct. But the problem is that we had no way of knowing it was even in effect.
A law only exists as it is interpreted by the courts. In fact, as Oliver Wendell Holmes famously put it, you could define law as nothing other than a prediction of what the courts will do. So when courts interpret the law, they are in practical effect making the law by saying what the law is.
That is why legal interpretation needs to be public -- because it has the same effect as lawmaking. When it is secret, we have in effect secret law. And secret laws don't belong in democratic systems. Countries that have them don't even have the rule of law. They have rule by law, which is a very different thing, when the law isn't supervised by the people but is rather used to manage and control them.
The trend of secret legal interpretations goes back to the George W. Bush administration's secret torture and wiretapping memos, which advanced outrageous constitutional and statutory claims. It extends through the secret memo from Barack Obama's legal team authorizing drone strikes to kill U.S. citizens based on executive branch "due process." The Verizon example involves a court, but it belongs to this tradition.
We should recognize that while facts may be kept secret and the application of law to facts might also be a secret task some of the time, the meaning of the law itself must always be public. Only then can We the People make sure we think it is being interpreted correctly.
The alternative to public law is the end of democratic supervision. And when that happens, well, the result is that the government keeps tabs on all calls in the U.S. All of them.
(Noah Feldman, a law professor at Harvard University and the author of the forthcoming “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter.