On Monday, US District Court Judge Richard Leon made national headlines by declaring NSA’s metadata collection program unconstitutional, arguing that the NSA is violating the 4th Amendment injunction against “unreasonable” searches with its “almost Orwellian” collection effort. Putting aside the fact that the program has been previously reviewed and okayed by his fellow judges sitting on the Foreign Intelligence Surveillance Court, is grounded in law passed by Congress and approved by the President, and rests on long-standing Supreme Court precedents, Leon nevertheless felt free to write that he could not “imagine a more ‘indiscriminate’ and ‘arbitrary invasion’” of the privacy of “virtually every single citizen.”
Now, this is not to argue that the NSA program doesn’t need to be looked at and modified. There is nothing written in stone about the program or its merits. And certainly circumstances and technological changes will have an impact on the appropriateness of any public measure of this sort. But, if changes are to be made, it should be accomplished principally by Congress and the executive branch deciding what the right balance should be in protecting the life and property of citizens, gathering needed intelligence, and guarding Americans’ privacy. And such an assessment shouldn’t foreclose reaffirming the basic program as being a sensible means to address those multiple goals, and doing so in a manner that doesn’t run afoul of important but not absolute 4th Amendment injunctions.
That’s why, with all due respect to Senate Intelligence Committee Chairwoman Dianne Feinstein (D-CA), her response to the Leon decision that “only the Supreme Court can resolve the question on the constitutionality of the NSA’s program” is not only wrongheaded as a matter of policy, but also flies in the face of her constitutional duties as a member of Congress. Nowhere in the Constitution does it say that the Court is the only arbiter of all things constitutional. And while there is no guarantee that the Court will simply defer to Congress and the President in this matter, it’s also true that the justices are not apt to ignore the combined judgment of the political branches on issues in which a blanket “yes” or “no” decision by the Court can run roughshod over precisely the kind of balancing the policy matter deserves.
Punting things over to the Court is precisely the wrong approach in this case.
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