A Brief Reply to Steve

In his response to my post in defense of the NSA, Steve raises a few issues about my claim that the "NSA's activities are legal." I would like to address them each very briefly. First, he asks, "does Ben think we should completely ignore the fact that the NSA apparently misrepresented its activities–and its understanding of the scope of its authority–to the FISA Court on at least three occasions (that we know of)?" The simple answer to this question is no. I don't think we should ignore it. Judge John Bates expressed concern about the government's representations, and those concerns seem to me warranted. Any time a judge raises questions about the government's candor before a tribunal---even if he was not suggesting intentional misrepresentation---one has to worry, and that is all the more true when the activity in question involves highly-sensitive, secret, and pretty awesome surveillance powers. But to say that we should not ignore something is not to say that the activity to which it pertains is illegal. If the government makes material misstatements---on purpose or by accident---in a murder prosecution, that may have consequences for the murder prosecution in question, but we don't generally conclude that murder prosecution in general is illegal. Similarly, here, the government erred in its account of 702 collection to the court. The court responded. The government acted to bring itself into compliance. The court was satisfied. I see no reason to conclude from this sequence---however much the underlying misrepresentation may be cause for concern---that 702 collection in general is illegal. Next, Steve asks: "should we assume that the legality of the NSA’s conduct is necessarily settled by the FISA Court’s ex parte, mostly secret rulings in these cases?" His broader point is that my logic does not fully justify my claim of legality:

Ben bases this assertion on a series of interrelated arguments, none of which, in my view, actually get him all the way to his conclusion: (1) Things aren’t not as bad as the bad-old days of the 1970s; (2) “nobody can argue that it is a lawless or crazy interpretation of the statute; in fact, it’s on its face quite plausible”; (3) the FISA Court “approved” “it”; and (4) Congress signed off on “it.” . . . even if one thought that the FISA Court were the most independent judicial institution in the history of the world, its decisions would still have the precedential force of those of a district court. And as we all know, district court decisions never bind anyone besides the parties thereto. So even if, unlike me, one believes that the process before the FISA Court is sufficient, and that the court is tasked with asking and answering the right questions in these cases, that still wouldn’t get us to Ben’s categorical conclusion.

I'm a little perplexed by Steve's argument here. Normally, we define the legality of government action with some reference to the processes of government empowered to declare those actions illegal. Here, Congress has passed law---two distinct laws, to be precise---empowering the government to go to the FISA Court and seek orders for certain types of surveillance authority. The government has, on many occasions, done so. The judicial review mechanism Congress has set up has approved those requests. Congress, having been kept informed of the government's legal positions, has not rescinded the laws in questions; in fact, it has reauthorized them. To observe that none of these judicial actions has precedential force does not seem to me to undermine remotely the claim that we are looking at a system that has followed the legal rules Congress set down for it. Nor does the possibility that a higher court may some day take a different view of the whole matter. We don't generally define illegality according to the possibility that some court might some day strike something down. People who want to argue that our government is behaving lawlessly should have some positive basis for saying so. My positive basis for arguing for legality involves broad statutory language passed by a Congress that has been kept well informed about its use, repeated judicial adoption of the government's reading of that language (admittedly at a district court level), and congressional reauthorization of the relevant language knowing of the interpretations in question. If I were a lawyer at DOJ or NSA, that would seem pretty good to me. Finally, Steve accuses me of focusing on critics' Fourth Amendment arguments to the exclusion of statutory arguments:

His basic claim is that the principal challenge to the NSA’s activities is grounded in the Fourth Amendment–and is therefore an argument against precedent. But one need go no further than prior posts of mine, or briefs by the ACLU, or any number of other commentaries, to see how much of the more nuanced focus is in fact on the statutory issue–that the NSA is exceeding the authority Congress delegated to it.

But this responds to an argument I did not make---and do not believe. My post said nothing about what priority critics give to constitutional versus statutory arguments, merely that neither gets you to lawlessness. In fact, I treated the constitutional arguments only by noting that many critics fall back on rote invocations of high-altitude constitutional principles in the face of statutory language that seems to support the government's activity. I was not thinking here of sophisticated critics like Steve or the ACLU, but people like Senator Rand Paul and the many comments like these, which Paul made recently on Fox News Sunday: Such comments may not form a big part of Steve's conception of the issue---on that we certain agree---but they are a huge part of the public debate. And yes, I have a certain scorn for them. If all critics were as focused on statutory questions as Steve, I would not have included mention of the Fourth Amendment in my post.