The Second Circuit and the Politics of Surveillance Reform

I have very little to add to Marty’s analysis of Judge Lynch’s opinion for a unanimous Second Circuit panel holding that the NSA’s bulk telephone metadata program is not, in fact, authorized by section 215 of the USA PATRIOT Act. Not only does the court’s analysis of both preclusion and the merits of the statutory challenge strike me as deeply correct, but it is, as Marty and I both suggested after the two December 2013 district court rulings dividing on the constitutionality of the program, the much more obvious way to decide this case. Instead, I wanted to suggest one hopefully obvious, but perhaps underappreciated, consequence of today’s decision: The near certainty that Congress will now pass a bill that is much closer to the USA FREEDOM Act that was voted out of the House Judiciary Committee last week than it is to the “clean” reauthorization that has been proposed by Senator McConnell. In my view, this is so for three separate, but interrelated, reasons, which I elaborate upon below the fold:

  1. Most importantly, the McConnell bill can no longer be held out as “reauthorization” of the bulk telephone records program because, according to the Second Circuit, the program was never authorized in the first place. Thus, the McConnell bill is now, in essence, a bill to overrule the Second Circuit–and, as such, a much tougher sell to anyone who is committed either in theory or practice to some kind of surveillance reform. Simply put, there is no longer a serious chance that, simply because of inertia and an expiring clock, a majority of the Senate (to say nothing of the House) will coalesce around the McConnell bill. I don’t think that was ever that realistic (especially in the House), but the Second Circuit’s decision fundamentally inverts the status quo.
  2. Second, and not as obviously, Judge Lynch’s discussion of the Fourth Amendment issues raised by the phone records program rightly (in my view) highlights the potential significance to constitutional reasonableness analysis of meaningful congressional engagement in carefully tailoring the government’s surveillance authorities. In English, Lynch is all-but suggesting that McConnell’s bill would raise serious (and perhaps insurmountable) Fourth Amendment questions, whereas a far more detailed statute that reflects widespread public engagement on the precise scope of the government’s surveillance authorities might be less constitutionally vulnerable.
  3. Thus, as a result of (1) and (2), the Executive Branch will now not just acquiesce in the USA FREEDOM Act, but will affirmatively push for its enactment, lest June 1 come and go without any bill, and the government lose section 215 (or comparable authority) for any new investigation. (It should be obvious, but I’ll point out in any event, that three weeks is hardly enough time to pursue en banc review or certiorari before the Supreme Court.) So long as the Executive Branch could have some confidence that something would get passed by June 1, there was no reason for it to enthusiastically get behind the USA FREEDOM Act. Now that a “clean” reauthorization is almost certainly a dead letter, and the choice may well be between USA FREEDOM and nothing, don’t be surprised to hear far more support for the former from the White House and the intelligence community in the coming days and weeks.

In other words, the Second Circuit’s decision, among other things, will almost certainly radically invert the status quo on Capitol Hill vis-a-vis surveillancce reform. Whether or not this is a good thing will depend, I suspect, on what one thinks of the current version of the compromise-laden USA FREEDOM Act. As I plan to explain later today, I still think the provisions for adversarial review by the FISC are way too modest (especially for the forceful reasons suggested in Judge Sack’s concurrence), but am also a firm believer that the perfect can often be the enemy of the good.

Should be an interesting few weeks in surveillance land… 

About the Author(s)

Steve Vladeck

Co-Editor-in-Chief of Just Security and Professor of Law at the University of Texas School of Law. Follow him on Twitter (@steve_vladeck).