A Reader's Two Questions About the 215 Opinion
A reader familiar with surveillance matters writes in with these two questions about yesterday's opinion from the Second Circuit:
1) The opinion seems to turn on the Court's belief that either not enough Members of Congress were aware or that the *right* Members of Congress (in its view) were not aware that Section 215 was being used to enable bulk collection.
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A reader familiar with surveillance matters writes in with these two questions about yesterday's opinion from the Second Circuit:
1) The opinion seems to turn on the Court's belief that either not enough Members of Congress were aware or that the *right* Members of Congress (in its view) were not aware that Section 215 was being used to enable bulk collection. The Court wasn't clear at all about who it thinks should have been notified or in what form, but the real question in any event ought to be why the Court is trying to make that determination in the first place. I would argue that Congress has already made that determination via its authority to "determine the rules of its proceedings" under the Rulemaking Clause. Even if it hasn't, Congress and not the Courts needs to make that decision. The Court ignores the Rules and procedures of the House and Senate entirely.2) If the Court believes that there needs to be "broad discussion in the Congress or among the public" to constitute knowing ratification, how does it propose to have Congress ever legislate on matters that involve classified national security programs?
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
