In our opinion: Judicial review of NSA is long overdue

Published: Friday, Dec. 20 2013 12:00 a.m. MST

Outside the National Security Administration campus in Fort Meade, Md.

Patrick Semansky, Associated Press

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A judge’s ruling on the constitutionality of the National Security Agency’s surveillance practices is the necessary first step in what is likely the only process that will allow the nation to finally get its arms wrapped around this important issue — a thorough and decisive review by the country’s highest courts.

Thus far, the executive and legislative branches have shown no eagerness to set meaningful limits on the NSA’s gathering and storage of metadata worldwide. And until U.S. District Court Judge Richard Leon’s ruling this month, the judicial branch has not addressed the overall constitutionality of such surveillance since a 1979 case — minus, of course, the 35 times the secret Foreign Intelligence Surveillance Court has ruled such spying is constitutional under the Patriot Act.

Thanks to the FISA court, the NSA has operated under a presumption of constitutional purity as established by judicial review. It’s therefore up to the judiciary to break down that legal latticework and determine whether the existing operations of the NSA and related intelligence services — in individual cases and in the aggregate — are now and have been previously permissible under the Fourth Amendment.

Judge Leon has ruled they likely are not, setting the stage for a process of judicial review that could – and should – make its way to the doors of the Supreme Court, if not in this particular case, in another of similar scope. As the judge put it, Founding Father James Madison “would be aghast” at what the NSA is doing. Also, the judge questioned the value of the NSA’s massive data gathering, saying the government has yet to provide evidence it had accomplished anything.

The Supreme Court last considered the subject of government’s spying on private phone communications in 1979, when landline rotary dial phones were the norm and the myriad functions of today’s smartphones the stuff of science fiction. That was not lost on Judge Leon, who noted with sarcasm that streets were lined with payphones 34 years ago.

Judge Leon ruled the context of that 1979 case is now obsolete. And while the state of communications technology has radically changed since then, it needs to be said that so has the state of international security. The threat of terrorism requires the U.S. to employ an effective means of surveying risk and circumventing an attack. The question is, and always has been, one of proper balance. The judiciary is the forum for setting the parameters of such balance, and there is plenty of precedent for doing so. Also in the 1970s, the Supreme Court ruled against the government’s attempts to upset constitutional privilege on grounds of national security in the so-called Pentagon Papers case. The court ruled the government could not exercise “prior restraint” against the New York Times to prevent the paper from publishing once-secret documents pertaining to the Vietnam War.

The high court said the government must meet a heavy burden in demonstrating the likelihood of “grave and irreparable” harm to the nation before it could take action that would trump the forbearance of free speech. A similarly heavy burden of proof should be met before the government willy-nilly amasses billions of records of private communications.

We are now hopefully on a path that will eventually establish the clear parameters of the government’s burden, which must amount to more than the argument the NSA needs haystack of data in order to search for a suspicious needle.

And there must be a more palatable means of demonstrating that burden has been met – by an ample showing of cause in the clear light of day and not in the shrouded chambers of a secret court.

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