Reforming the NSA

Over at the NRO, Andrew McCarthy has an interesting column on the controversy about NSA. I hope to say something about the President’s review board at some point. McCarthy’s description of the members of the board is interesting:

It is composed of only five members. Three are academics: Cass Sunstein, who served as regulatory czar in the president’s first regulation-happy term; Geoffrey Stone, a civil-liberties scholar; and Peter Swire, a privacy-law expert who also worked in the Clinton administration. I have great respect for their scholarship, but all three are predisposed to elevate civil-liberties concerns over national-security needs. The president’s panel is rounded out by two intelligence-community veterans: former Clinton counterterrorism czar Richard Clarke, best known for his bitter criticism of the Bush administration during the 9/11 Commission hearings; and former Obama acting CIA director Michael Morell, best known for purging references to al-Qaeda and terrorism in the drafting of the agency’s fraudulent Benghazi “talking points” that have lived in infamy since Susan Rice repeatedly parroted them on national television.

McCarthy then goes on to claim that the judiciary should not be involved in national security matters; instead, such matters should be subject to congressional check. He writes:

Predictably, the panel’s report would put federal judges in charge of our homeland defense. Government agents would not only need to represent to a court that they had a good-faith national-security purpose for seeking information that is not constitutionally protected; they would now have to prove it to the court’s satisfaction. The judge, not the president and intelligence agents, would decide what foreign threats were serious and what operatives should be investigated.

This is antithetical to the Framers’ conception. They gave no national-security role to the courts — not because judges are unreliable but because they are unaccountable politically. In a free, self-determining society, security decisions must be made by political actors answerable to the people whose lives hang in the balance. Courts do not answer to the voters, and because their job is to ensure fairness and protect individuals from government excess, they inexorably increase due-process safeguards over time. This is a fine thing if we are talking about peacetime law enforcement and Americans presumed innocent; it can be a perilous thing in wartime when enemies attack in stealth.

Well, yes and no. The Constitution does clearly put certain matters in the hands of courts. If the President wants to search an American citizen of information about national security matters, the Fourth Amendment clearly places a limit on such searches, one that is enforced by the judiciary. If material is not constitutionally protected, then the Constitution does not mandate a role for the courts, but it is not clear – to me at least – that the Constitution forbids Congress from authorizing courts to hear lawsuits about whether the executive can acquire nonconstitutionally protected information.

Finally, McCarthy recognizes that courts might be prone to overprotection of due process safeguards. Yet, he does not seem to recognize that the executive (and the national security people in Congress) might be prone to over underprotection of privacy interests.

Whatever one thinks of Edward Snowden, his releases have made clear that the government has been engaged in large amounts of data collection that the government repeatedly denied to the American people. A significant review is clearly needed. And if there is to be some check on the executive, it is by no means clear that there is a real alternative to a significant judicial role.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    I am not so certain.

    Isn’t McCarthy’s point here that the Executive (and by extension the Legislature that has authorized the program and has oversight responsibilities) MUST seek prior approval from an unaccountable court.
    Turn this around and view it as “prior restraint” in terms of the first amendment” – we don’t (and rightly so) permit that, do we.
    Why should we allow the Court to once again stick its oversize probiscus under the tent.
    If violations occur, then punish the Executive / Legislature – but the courts are not competent to make these kinds of assessments precisely because they are an isolated / insulated (by design) part of government.

    take care
    gabe

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