Nor was this the only instance of government legerdemain, a fact that, in a time of epic Obamacare mendacity and incompetence, clearly piqued the court more than it ordinarily might have. Judge Leon recounted the 2009 findings by Judge Reggie Walton of the Foreign Intelligence Surveillance Court (FISC) – the tribunal created by Congress in 1978 to monitor executive intelligence gathering activities in the U.S. – that the government had engaged in “systematic noncompliance” with program safeguards (known as “minimization procedures”). Judge Walton also concluded that government officials had repeatedly made misrepresentations to the FISC judges. Subsequently, yet another noncompliance episode impelled FISC Chief Judge John Bates to write in 2011 that
the Court is troubled that the government’s revelations regarding NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.
Now, in the greater scheme of things, the number of irregularities, good faith and otherwise, affected only a minute fraction of the lawful collection effort – a point the government finds tough to make in its defense since it highlights the hugely unpopular fact that records relating to hundreds of millions of Americans are being collected. It is also worth underscoring that the government’s misdeeds have been caught precisely because the NSA program is designed to be carefully monitored by non-executive branch officials – in stark contrast to other executive branch endeavors (e.g., Obamacare, IRS harassment of conservative groups, Fast & Furious, and providing security for our troops and diplomats overseas) that have been tainted by abuses of power.
Still, while the public does not expect any government program to run perfectly, problems with the NSA program are bound to be magnified. Metadata collection is like a reverse Obamacare: “covering every American” is deeply unpopular in theory though vastly inconsequential in practice. Moreover, because the NSA program began under Bush, there is no inclination in the Obama administration to defend it aggressively. In fact, the administration teems with lawyers who fought the program in the Bush years and don’t like it any better now. No surprise then that, as the Wall Street Journal’s editors detailed on Tuesday, a special advisory panel handpicked by the president apparently recommends gutting the program.
Furthermore, in another Obamacare contrast, people do not feel powerless to oppose the NSA program. A coalition of leftists and libertarians has already come tantalizingly close to passing legislation to undermine it in the House. Without a vigorous White House defense – assuming arguendo that our widely distrusted president would still be capable of mounting a convincing defense of a government program if he were so inclined – the NSA effort is living on borrowed time.
Flouting the Supreme Court’s Controlling Case
None of that excuses Judge Leon’s lawlessness.
The judge concluded that the NSA’s amassing and highly regulated inquiries of metadata violate the Fourth Amendment’s prohibition against unreasonable searches and seizures. This flies in the face of controlling Supreme Court precedent. As discussed here in July, in its 1979 ruling in Smith v. Maryland, the high court held that records of telephone usage – again, the details about, but not the content of, communications – do not implicate the Fourth Amendment. If the Fourth Amendment is not implicated, then the government’s collection and perusal of these records does not violate the Constitution, case closed.
When there is a controlling Supreme Court ruling on point, a district judge’s duty is to follow it. That cannot be a contestable principle; otherwise, we invite anarchy.