Law Talk recently commented on a lawsuit that had just been filed by Human Rights Watch to challenge the constitutionality of an American mass surveillance program put into place after the terrorist attacks of September 11, 2001.
Since then, several interesting developments have occurred, and more are expected to occur as early as tomorrow.
First, the French legislative assemblée voted to authorize a similar mass surveillance program, and tomorrow the French senate will begin its review of the bill. Here’s the French senate website page on different aspects of the pending bill.
Second, a portion of the American mass surveillance program, including the National Security Agency’s bulk telephone metadata collection program that was challenged in the Human Rights Watch lawsuit, expired yesterday due to a scheduled lapse of legislative authority. The House of Representatives had already acted to renew the authority, but the Senate failed to reach a vote on the issue. Debate in Washington over whether and how to renew the program’s authority has been vigorous, and a new Senate vote could occur as early as tomorrow. This Huffington Post article summarizes the situation.
Third, in early May there was an appellate decision in an earlier lawsuit, brought by the American Civil Liberties Union and 3 fellow civil liberties organizations, to challenge the National Security Agency’s bulk telephone metadata collection program as both exceeding the agency’s statutory authority and violating the US constitution. In that earlier lawsuit, the US district court had dismissed the complaint on the reasoning that the statute precludes judicial review. (The district court also found that the claim that the program exceeds statutory authority would in any event fail on the merits, and that the program doesn’t violate the US Constitution.) On May 7, the US Court of Appeals for the Second Circuit reversed the district court’s decision. Without reaching the constitutional issues, the appeals court confirmed that judicial review was permissible, and then found that the bulk telephone metadata collection program exceeds the National Security Agency’s statutory authority.
If Congress votes to reauthorize the mass surveillance program, then it can of course clarify the statutory limits of the National Security Agency’s authority to operate the bulk telephone metadata collection program. In other words, the appellate court’s finding of an absence of statutory authority would be rendered moot. However, in that case the courts would surely be called upon again to address the constitutional issues, and this time they would be required to reach them.
You can read the appellate court decision here.
Meanwhile, we’ll leave with an excerpt from Alexander Hamilton’s Federalist paper #8 (published in late 1787 to promote ratification of the US Constitution, and quoted by Judge Sack in his concurring opinion in last month’s appellate court decision invalidating the NSA’s bulk telephone metadata collection program):
Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
To be continued . . .