Why Isn’t the Supreme Court in a Hurry to Challenge the NSA?

Source: Thinkstock

Source: Thinkstock

Justice Antonin Scalia indicated at a March talk at Brooklyn Law College that the U.S. Supreme Court was very much attuned to the significant constitutional questions posed the National Security Agency’s domestic surveillance programs, noting that his fellow justices were well aware that legal challenges of the NSA’s data collection were headed to the country’s highest court. When asked by a student whether the conservative-leaning Scalia considered data stored on computer drives to be an example of the type of “effects” covered by the Fourth Amendment’s protection against “unreasonable” government searches, the justice responded with one syllable. “Oh,” he said, with the cryptic response suggesting he did not want to prejudice the issue. He did, however, comment that the judicial branch is the least “competent” arm of government to assess the effectiveness of and the necessity for intrusive electronic spying of the sort carried out by the NSA.

A recent move by the high court reaffirms Scalia’s evaluation. In an April 7 order, the court revealed a petition for a writ of certiorari before judgement filed by a legal advocate Larry Klayman against President Barack Obama was denied. That means Klayman’s attempt to fast-track the lawsuit that he claimed was so urgent is over. Klayman has claimed that the security agency’s collection of telephone data was a breach of individual’s constitutionally protected privacy rights. His argument even persuaded a trial judge to agree that the programs probably violate the privacy rights enshrined in the U.S. Constitution’s Fourth Amendment, which states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

As Bloomberg reported Monday, U.S. District Judge Richard Leon’s December ruling called the NSA spying program “almost Orwellian” in nature.

However, in his comments at Brooklyn Law College, Scalia opined that, “The Supreme Court doesn’t know diddly about the nature or severity of the threat,” meaning it will not likely be the institution to make the final decision on the extent of government surveillance.

More than six months have passed since former NSA contractor Edward Snowden out-spied the spies, revealing to the British newspaper The Guardian last June that the NSA operated a number of mass surveillance programs and had been systematically keeping years of phone records for hundreds of millions of Americans. Gaining particular attention was the program PRISM, which collects metadata — or data about data — from United States phone companies on millions of calls made by U.S. citizens and foreigners. While public opinion remains divided over the morality of his actions, he believes he has accomplished an important mission. “As soon as journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself.”

Changes have slowly unfolded; the chain-reaction set in motion by Snowden’s actions has put the American surveillance apparatus under the spotlight and forced the government and the administration of Barack Obama to address the issue. Earlier in the year, the president detailed the changes he would make to the National Security Agency, changes the American public has anticipated since Snowden allegedly stole 1.7 million classified documents from U.S. government computers, an act that landed him in exile in Russia with a charge of espionage. Since last June, pressure has been laid on Congress to investigate the surveillance, and finally the Obama administration has addressed the need for oversight of the government’s intelligence activities. “We will review decisions about intelligence priorities and sensitive targets on an annual basis so that our actions are regularly scrutinized by my senior national security team,” said Obama, according to a late January White House Press Release.

In pursuit of achieving a balance between national security and personal privacy, the Obama administration endorsed a plan last week to end the government’s bulk retention of phone records for every call made to and from the United States; intelligence officials will ink a blueprint for a yet-to-be determined, non-government entity to take over maintenance of that data instead. When the NSA needs to obtain call records linked to a suspected, officials will still need the approval of a judge in the Foreign Intelligence Surveillance Court, which has been part of procedure, except in emergencies, since Obama took office in January 2008. The announcement came in a 45 minute speech in which the president responded to a long list of proposed NSA reforms compiled advisory board of academics and former intelligence officials brought together by the Obama administration.

Still, responses on twitter and the broader Internet indicate that a large portion of the American public remains unconvinced the NSA’s data collection will be reformed in any meaningful way, especially since the nation would have never heard of the agency’s program had it not been for Snowden. Still, Democrat Dianne Feinstein of California, who chairs the Senate’s Intelligence Committee, called the president’s plan a “worthy effort,” while American Civil Liberties Union executive director Anthony Romero praised it as “a major step in the right direction and a victory for privacy.” However, Romero also insisted that, “This must be the beginning of surveillance reform, not the end.”

“I believed that if the NSA’s unconstitutional mass surveillance of Americans was known, it would not survive the scrutiny of the courts, the Congress, and the people,” Snowden said in a statement to the ACLU, following Obama’s speech. “The very first open and adversarial court to ever judge these programs has now declared them ‘Orwellian’ and ‘likely unconstitutional,’” he added, referring to Leon’s decision. Contributing to the momentum NSA reform has gained is the USA Freedom Act that was introduced to both houses Congress in October.

“In the USA FREEDOM Act, Congress is considering historic, albeit incomplete reforms. And President Obama has now confirmed that these mass surveillance programs, kept secret from the public and defended out of reflex rather than reason, are in fact unnecessary and should be ended,” opined Snowden, describing that growing momentum.

The United States Department of Justice has come out with its own changes as well. The Justice Department has relaxed the long standing gag order on the nature of the requests for sensitive data it makes of technology companies, a change long pushed for by Google (NASDAQ:GOOG) (NASDAQ:GOOGL), Microsoft (NASDAQ:MSFT), and their peers. This means, for the first time, that these companies will be allowed to publicize how often they provide customer information to the U.S. government, officials announced January 27. “While this aggregate data was properly classified until today, the office of the Director of National Intelligence, in consultation with other departments and agencies, has determined that the public interest in disclosing this information now outweighs the national security concerns that required its classification,” the Justice Department said in a statement.

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