Legal Commentary

Let us assume for the moment that the NSA surveillance program at issue here is perfectly constitutional and legal. Still, what is troubling about the story is that the statutory, administrative, and constitutional framework still permits significant abuse.

The NSA spied on conversations by Americans that had nothing to do with terrorism; surveillance continued because the salacious nature of the conversations was interesting to the eavesdroppers, and then the conversations were traded among various government employees for their amusement.

When you design a surveillance program, it is not enough that the system conform with existing legal doctrines; it must also have built in methods to prevent abuse. When you give the executive branch legal power to spy on Americans because of the overriding need to protect the country's safety, you also have to put in place methods to ensure that these powers are used only in the public interest. Government servants are not angels, they are not free from bias, prejudice, self-interest, or corruption. "Not illegal under current law" is not the same thing as "well-designed."

The point of the ABC story, as I understand it, is that the Bush Administration has repeatedly assured us that the surveillance it engages in is absolutely necessary to protect our safety and that the legal and institutional constraints the Bush Administration has put in place are adequate to prevent misuse of the powers we have given our government. The report suggests that this is not the case.

In debating the intricate details of whether a particular policy or practice is consistent with existing Fourth Amendment doctrine or is covered by FISA we may tend to miss the forest for the trees. Existing constitutional, legal and administrative safeguards may not be sufficient to prevent the abuse of state power. If this is so, and the ABC story suggests it is, it means that we must change those structures and the way that surveillance is conducted. We need new forms of oversight and ways of watching the watchers.

One thing that Marty said seems to me particularly worth noting in this context: He does not simply focus on the Fourth Amendment and FISA; he also goes on to speculate that the NSA program violates minimization procedures that are designed to prevent abuse. If the NSA no longer is required to engage in such minimization (because of a secret rescinding of a Presidential order), or is not enforcing these requirements, or has found a way around them, this is quite important, as Marty suggests.

It is comforting to think that this story is exceptional, the result of "a few bad apples." But we have heard this excuse before in the context of the Administration's detention and interrogation policies. We learned that the abuse and torture of prisoners was not in fact solely the work of a few bad apples, but was the direct or indirect consequence of policies and decisions made at the highest levels. Evidence of abuse in surveillance practices should cause us to be more concerned, not less concerned, that the Administration has failed to design checks on abuse in its surveillance programs.

Full post as published by Balkinization on October 11, 2008 (boomark / email).