FISA: 702 Collection

"Yes, yes!--In the face!": A Reply to Ben

By Steve Vladeck
Monday, September 9, 2013, 5:07 PM

I have no doubt that Ben meant to provoke--and, at least in my case, he did (enough, at least, to make a Coming to America reference in the title of this post). Ben's full post in defense of the NSA (and his not-so-thinly-veiled criticism of its critics) is worth reading--especially for those who agree with Ben's apparent view that Lawfare readership has become the metric by which we assess the amount of popular interest in specific points of debate.

But it's Ben's fourth point--"the NSA’s activities are legal"--that I want to reply to here.

Ben bases this assertion on a series of interrelated arguments, none of which, in my view, actually get him all the way to his conclusion: (1) Things aren't not as bad as the bad-old days of the 1970s; (2) "nobody can argue that it is a lawless or crazy interpretation of the statute; in fact, it’s on its face quite plausible"; (3) the FISA Court "approved" "it"; and (4) Congress signed off on "it."

First, does Ben think we should completely ignore the fact that the NSA apparently misrepresented its activities--and its understanding of the scope of its authority--to the FISA Court on at least three occasions (that we know of)? Ben may agree with Carrie Cordero that the FISC opinion pushing back against these misrepresentations proves that the process "works"; to me, it proves only that, when the FISA Court actually knows what the NSA is up to, it's often skeptical, not "approv[ing]."

Second, even if the "it" to which Ben is referring is the NSA's activities as subsequently circumscribed by the FISA Court, should we assume that the legality of the NSA's conduct is necessarily settled by the FISA Court's ex parte, mostly secret rulings in these cases? Keep in mind that these are decisions rendered without the benefit of adversarial briefing or argument, and pursuant to fairly pro-government procedural and substantive standards. But even if one thought that the FISA Court were the most independent judicial institution in the history of the world, its decisions would still have the precedential force of those of a district court. And as we all know, district court decisions never bind anyone besides the parties thereto. So even if, unlike me, one believes that the process before the FISA Court is sufficient, and that the court is tasked with asking and answering the right questions in these cases, that still wouldn't get us to Ben's categorical conclusion. 

Third, and most fundamentally, Ben is committing the very kind of error he seems so intent on imputing to the NSA's critics by seizing on their weakest argument: His basic claim is that the principal challenge to the NSA's activities is grounded in the Fourth Amendment--and is therefore an argument against precedent. But one need go no further than prior posts of mine, or briefs by the ACLU, or any number of other commentaries, to see how much of the more nuanced focus is in fact on the statutory issue--that the NSA is exceeding the authority Congress delegated to it. And as the above should indicate, the statutory question is much closer--or, at the very least, far less settled--than the constitutional question. Ben may be convinced of what the answer should be, but reasonable people should be allowed to disagree without such scorn...