Tuesday, May 12, 2015

A very meaningless court victory against government spying

All over the Internet liberals, libertarians and other assorted members of the chattering classes are cheering the decision by a three-judge panel of the Second Circuit Court of Appeals holding that the bulk collection by the NSA of data about every phone call anyone makes in the United States is illegal.

The panel's unanimous decision said Section 215 of the Patriot Act did not authorize the NSA to spy on everything that everyone in this country did all the time. The (secret) Bush and (public) Obama administration position was something like that a really tiny footnote to the ultra-fine print that Congress put in between line 92 and 93 of Section 215 did --if properly read with police-state magnifying classes-- authorize some of the people (namely, those working for the NSA) to spy on all of the people all of the time.

And actually, that was the government's fall-back position. The original position of Bush's and Obama's lawyers when these sorts of lawsuits were first being filed was that those suing had no "standing." That means no right to bring their complaints to court, because there was no proof --"none whatsoever!" thundered the government's paid legal thugs-- that this sort of hanky-panky was going on.

Now that Snowden has committed "treason" by telling you and me, and proving with documentation what "our" government was actually doing to us, even as the government's lawyers were swearing on a stack of Bibles in court that it was outrageous to suggest they were doing that, the official story has changed. Now it's, "Of course that was going on. Didn't you read the Patriot Act? Your elected representatives are the ones you should be talking to, they voted for it, don't go moaning to a judge." And so on.

Which is, in reality, what the learned judges of the Second Circuit Court of Appeals have given us, the old three co-equal branches of government song-and-dance routine, a three card monte scam that even Manhattan street hustlers would admire.

Some, like this witless scribbler for fusion, are claiming the court found NSA spying "unconstitutional." Not so. The court did not find the program unconstitutional. They found that it is not authorized by the Patriot Act.

The author says they found it "unconstitutional" and "separately" that is was "not authorized." But under American legal norms, a court does not rule on constitutional questions if the case can be decided on less sweeping grounds, which is what happened here. In this case, they said the wholesale collection of records by the NSA was illegal simply because the NSA is only supposed to do those things it is authorized to do by law. So they ought not to have done it. The judges also said there would be grave constitutional concerns had this spying been authorized, but since it wasn't, they didn't have to decide that question.

It is the same as if the NSA started marrying people. Marriages are 100% legal and constitutional, but, no, the NSA is not authorized to perform them, and, like its wholesale spying, there would be grave constitutional concerns if Congress said they could do it, in this hypothetical case, because it is the job of state governments, not the federal government, to issue marriage licenses.

There are three things about the Circuit Court's decision that make it much less than in seems.

Thing one: another federal court --the secret FISA court-- decided that the NSA did have authority to do this under Section 215. The FISA court is not directly under the Second Circuit court of appeals and thus not bound by the Circuit Court's ruling. But in the states covered by the circuit (Vermont, Connecticut and New York) this new ruling is now the law, it is binding. In other words, you have certain rights and protections --in theory-- while you're in Manhattan but they magically disappear as you're crossing the George Washington Bridge into New Jersey.

Not that it makes any difference, because ...

Thing two: the Circuit Court did not take any practical action. They did not tell the NSA "you are ordered to stop" or "you have to delete all the records." The case was "remanded" --sent back-- to the lower federal court, the District Court, which would have to issue orders for any practical action.

And that District Court is not going to take any practical action because ...

Thing three: before the District Court has a chance to carry it out, the Circuit Court decision will almost certainly become irrelevant, or "moot," as they say in the lawyering racket. Section 215 of the Patriot Act automatically expires on June 1, in three weeks, unless Congress acts to re-authorize it. If Congress were to re-authorize just as it stands, then the ruling might continue to mean something.

But if Congress shuffles a few words around, then the courts will say it is a new law and you have to start all over again ... provided, of course, you have enough money and lawyers to do so.

As Don Barzini famously remarked, there is a price to be paid. "After all, we are not communists."

So the real practical effect of the Circuit Court decision is to tell Congress that they can't simply say, "well, NSA, continue on doing whatever you've been doing" by voting for the text of Section 215 to continue in force for another few years, as they've done in the past because this court says you can't keep on doing what you used to be doing under Section  215.

The Second Circuit Court of Appeals said, in effect: if you, Congress, want to tell the American people that the feds can access every phone call they make, email they send, web search they carry out, and web site they visit, without the probable cause backed by a sworn statement like the Constitution requires for a search or seizure, then you, Congress are going to have to do the heavy lifting and tell them yourselves.

The courts are not going to take the fall for you by saying that actually it was in Section 215 all along, so blame George Bush and whoever was in Congress 14 years ago when the Patriot Act was first passed right after 9/11 without anyone in Congress actually bothering to read it.

And, of course, Congress is going to say it wasn't us, it was secret executive branch programs approved by a secret court that are to blame. But still, right now Congress is "it" in  this game of  tag.

I expect the dodge on this is going to be that Congress says, no the NSA shouldn't keep records on all phone calls, but the phone companies must keep such records and in a way that the NSA can access them at any time. Whether the NSA does it or the phone companies do it for them is really a distinction without a difference, the sort of scam all experience shows we should expect from our rat-brained congresscritters.

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