In Which I Side with the “Liberal” Judges

Regarding the NSA’s broad (much too broad, IMNSHO) surveillance of American citizens, the three judges hearing an appeal to the 2nd Circuit Appellate Court (Democrat appointees, all) expressed concern about that breadth. A Federal District Court had ruled the surveillance constitutional, and the ACLU is leading the appeal (and so I’m siding with that crowd, too, on this matter).

In an oral argument that was set for less than 30 minutes and lasted nearly two hours, three judges on a panel hearing the case at the Second US Circuit Court of Appeals in Manhattan probed claims by the ACLU that the federal government’s collection of data relating to “every phone call made or received by residents of the United States” is illegal and unconstitutional.


[Judge Gerard] Lynch asked how well briefed members of Congress were before voting, and questioned how much they understood about the program. At one point, [Judge Robert] Sack chimed in, “We don’t know what we don’t know” about NSA operations.

Lynch and [Judge Vernon] Broderick both questioned why the government’s justification for the bulk phone data collection program would not also extend to bank records, credit card transactions, and other personal data. Lynch asked if the government’s argument would not also entitle it to access “every American’s everything.”

It’s a fine line between the legitimate security needs of the Federal government if it’s to do the job for which we hired it—to protect us from foreign threats and from each other—on the one hand, and our individual liberty and responsibility on the other. Ben Franklin was right.

It’s necessary, also, to keep in mind that without our individual liberty and responsibility, we have no security. It matters not a whit whether we’d be enslaved by our own government or by a foreign power—we’d still be slaves.

Our Constitution has drawn that line: judge-issued warrants, on a showing of probable cause, are necessary to the legitimacy of the collection. These warrants also must be particular to the person and his property, and they also must be particular to the things being sought out. Fishing expeditions are not allowed.

True, “warrants” are sought in advance via a FISA court. But the FISA court is a secret court, a Star Chamber, no matter its currently good intentions. “Warrants” issued by it similarly are secret, which is to say, they don’t exist: they’re not public, and the person being “searched” under them has neither the ability to contest the warrant in court prior to its execution nor the ability to quash at trial the data discovered and/or seized. Nor can there be any guarantee that, given an ultimate victory, whether over an individual warrant that was discovered or over the process (the DC Circuit is hearing a similar appeal, and the thing is likely to find itself in front of the Supreme Court in the next session), the collected data actually will be expunged.

The 2nd Circuit’s case can be followed as American Civil Liberties Union v Clapper, 14-42, US Court of Appeals for the Second Circuit.

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