John Yoo, who famously wrote the legal rationale for allowing the US government to torture people, has already defended the NSA’s activities, arguing that it takes too long for the NSA to obey the Constitution, so it shouldn’t have to. Given that, it was hardly a surprise to see his reaction to the recent ruling saying that the NSA’s bulk metadata collection program was likely unconstitutional and should be stopped. Yoo is… not a fan of this ruling. In fact, he uses it to rail against judges daring to make any determination about whether or not something violates the 4th Amendment. According to him (and only him) that’s the job of Congress, not the courts….
In fact, I do not think that this is fundamentally the job of judges. It may be time to reconceive the rules of search and seizure in light of new Internet technologies — but that is the responsibility of our elected representatives. Only they can determine what society’s “reasonable expectation of privacy” is in Internet and telephone communications. Judges are the last people to fairly claim they have their fingers on the pulse of the American people. Only our elected representatives can properly balance existing privacy rights (if any), against the need for information to protect the nation from terrorist attack. Judges are far too insulated and lack the expertise to make effective judgments on national-security and foreign affairs. The president and Congress must take up their duty and work out the rules to govern surveillance to protect the nation’s security, and when they don’t, it is left up to the branch least capable of doing so, the judiciary.
There seems to be no basis for this other than that Yoo believes it to be the case. Courts have always had the role of determining whether or not the actions were unconstitutional. The idea that only “national security” and “foreign affairs” insiders can determine the rules is a recipe for massive regulatory capture by surveillance extremists like Yoo.
Yoo is also embarrassingly misstating Judge Leon’s ruling. He insists that, despite pages of detailed reasoning, Leon cannot claim that the outdated ruling in Maryland v. Smith doesn’t apply here:
Judge Leon cannot claim that the reasoning of Smith does not cover the telephone metadata at issue here, because the data collected are exactly the same as the kind held unprotected in Smith. Leon’s decision instead argues that technology has changed so much that Smith is no longer good law.
That’s clearly not what Judge Leon ruled, and Yoo is being blatantly intellectually dishonest here. Leon noted that Smith covered a very specific legal question, and the legal question here is different. And part of the difference in the question involves collecting a single piece of information on a single person, as opposed to collecting all information on everyone and continuing to collect that information forever. As Judge Leon rightly noted, that’s an entirely different issue than was tackled in Smith. That’s not saying Smith itself is no longer good law (though it isn’t), but rather that the situations are vastly different. I can’t see how anyone can reasonably argue otherwise. Collecting a single piece of information on a single person is incredibly different than hoovering up all information on everyone.
It’s no surprise to see the NSA’s loudest apologists grasping at straws over all of this, but, really they might want to give it a rest for a bit, because their arguments are looking more and more desperate and less and less intelligent.
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