I’m All For The Rule Of Law. It’s The Judges I Can’t Stand
Via today’s The New York Times,* some big-time journalism on how the FISA court is creating an alternate judiciary — at least potentially more powerful, than the already compromised public one by which we thought American citizens encountered the law:
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say
“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
I’m once again crashing deadlines, so I’ll leave off trying to write (n) words on a subject in which I have no particular expertise (the sound you hear is the peanut gallery cheering). The only thing I can say both quickly and with a reasonable shot at validity is that we already know how this kind of thing, unchecked, plays out. Secret courts trump even secret police as a threat to both democracy and freedom of thought and expression.
We’ve seen how this works in plenty of prior examples — and not just in the bad decades of the 20th century either. This isn’t where we should be now.
Over to you…
*This kind of piece is the reason I maintain my (Sunday) subscription to the Grey Lady. The opinion pages may be a howling desert of intellectual mediocrity (w. the Krugman exception and a few others worthy of honorable mention) and outright mendacity (looking at you BoBo)¹. But there is no substitute for the quality of journalism backed by real resources that the Times is capable of when it chooses. I know it doesn’t always do so (Judith Miller, anyone). But it still is the home of more of this kind of stuff than any other MSM outlet (that I can think of). So, yeah, we still need the place, much as we need it do a whole lot better a lot of the time.
¹I’m not even going to go into the “It’s not nice, child, to point and laugh” division populated entirely by Master Ross Douthat.
Image: Pedro Berruguete, Saint Dominic Presiding over an Auto-da-fe, 1475.