In the Financial Times, Philip Bobbitt, a law professor at Columbia who has worked in Democratic and Republican administrations, argued that the National Security Agency, in sweeping up a big part of the nation’s phone records, was upholding the law rather than subverting it. At the influential Lawfare blog, Joel F. Brenner, a legal consultant who between 2006 and 2009 was the head of counterintelligence at the White House, trotted out similar arguments and claimed that the United States “has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth.” On the op-ed page of the Wall Street Journal, Michael Mukasey, who served as Attorney General in the Bush Administration, questioned whether there has even been a meaningful infringement of privacy, writing, “The claims of pervasive spying, even if sincere, appear not merely exaggerated, but downright irrational.”
To which, my reply is: Lord save us from lawyers, especially the big shots who graduate from élite law schools and advise administrations. (Brenner is a Harvard man; Bobbitt and Mukasey are Yalies.) With some honorable exceptions, their primary function is protecting the interests of the political and corporate establishments, often by finding some novel and tendentious way to legitimate their self-interested actions. When lesser mortals object, they turn around and accuse them of being ignorant of the law.
The evolution of the legal framework surrounding electronic spying provides a textbook example of this process at work. In the past decade or so, some of the best legal minds in the country, working for the Bush and Obama Administrations, have reshaped a shadow system of court hearings and court orders that was originally created to serve as a check on the executive branch, but which, in practice, serves to justify its ever-expanding reach. Built upon repeated amendments to the Foreign Intelligence Surveillance Act of 1978, the system is so secretive it is virtually impossible for the American public, journalists included, to know how it operates. About all we can say is that it rubber-stamps a large number of requests from the intelligence agencies, including one, revealed to us by Snowden, that enables them to sweep up the telephone records of anybody who has service provided by a Verizon subsidiary.
Is that legal? Since a judge in the Foreign Intelligence Surveillance Court signed the secret order compelling Verizon to hand over the records, it might be assumed that it is. But the argument doesn’t end there. All court orders, even ones handed down by the FISA court, are supposed to be subject to review. And this order, which is almost certainly one of many compelling phone-service providers to act as an information-gathering arm of the N.S.A., bears inspection.
As Bobbitt and others have pointed out, the Supreme Court has ruled that the collection of telephone logs—but not telephone conversations—without a warrant does not violate the limits on search and seizure contained in the Fourth Amendment. But nowhere did the Supreme Court say that the federal government could routinely gather the personal call logs of hundreds of millions of Americans, which is what has been happening. Until Snowden’s revelations, it was widely assumed that the N.S.A.’s snooping on Americans was restricted to specific investigations, involving, say, the U.S.-based contacts of a certain terrorist suspect who lives overseas. Obviously, that’s not how things have been working.
While the White House would have us believe the FISA court’s “dragnet” order to Verizon breaks no new legal ground, Robert Chesney and Benjamin Wittes, who are associated with the Brookings Institution and the Lawfare blog, disagree. In an article at The New Republic, they write:
Specifically, it reveals that the government was using a particular section of FISA—known as Section 215—as a way of accessing not just specific items about specific persons on a case-by-case basis, but also as a means to create giant datasets of telephony metadata that might later be queried on a case-by-case basis. As we move into the age of Big Data, it may not be surprising that the government would want to have authority to generate such a database; we all recall the [Bush Administration’s proposed] Total Information Awareness initiative, after all. But it is surprising to learn both that the government thinks it already has this authority under Section 215, and still more so that the FISA Court agrees.
Already, there are challenges to the legality of the N.S.A. program, and not just from Rand Paul, who says he is planning to bring a class-action suit against the Administration, claiming its actions are unconstitutional. On Tuesday, the American Civil Liberties Union filed a lawsuit in which it asks that the program be halted and the information it has collected be destroyed. And the Electronic Privacy Information Center, a Washington-based public-interest group, sent a letter to Congress in which it claims that the FISA court “simply lacks the legal authority to authorize this type of domestic surveillance,” which is unrelated to the collection of foreign intelligence.
I wish these ventures, and the attorneys who pursue them, well. As I said at the beginning, not all lawyers are on the side of power. (I should also point out that this column is not directed at my friend and colleague Jeffrey Toobin, a lawyer and journalist who has been critical of Snowden but who was also one of the first to write about the expansion of executive power after 9/11.) Still, I won’t be holding my breath for the Administration’s legal challengers to succeed. The lawyers who put together the statutes enabling the FISA court rulings surely knew they would be challenged at some point, and they made it very difficult for such endeavors to succeed. It’s not clear that the plaintiffs will be able to clear the first hurdle of being heard in court and granted standing to sue. Even if they were, the Administration could ask a judge to dismiss the suits on the grounds that they are potentially damaging to national security. Can the government really do this under the law? Yes, it can, and the court might well accede to its requests.
Americans’ faith in the law is touching. In this instance, it is misplaced. If we want to stop the government spying on us, we are probably going to have to do it through the political system rather than the legal system. That won’t be easy either, but it may be the only way ahead.
Original Article
Source: newyorker.com
Author: John Cassidy
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