The White House report on surveillance makes an important contribution to the escalating debate, but it begs a big question. It finds that the NSA's massive collection of American telephone records "was not essential to preventing attacks and could readily have been obtained in a timely manner." (Report, p. 104). This finding powerfully reinforces the virtually simultaneous publication of the first judicial opinion, written by federal judge Richard Leon, challenging mass surveillance on constitutional grounds.
In contrast to Judge Leon's constitutional critique, his advisors took on a narrower task: "Our charge is not to interpret the Fourth Amendment, but to make recommendations about sound public policy." (Report, p. 85) The report then declares that telephone companies should continue the massive collection of meta-data. On their view, the aim is to reform, not eliminate, the practice of pervasive surveillance.
But if the dragnet is unconstitutional, it can't be "sound policy" for it to continue. Two centuries ago, King George's agents pursued a similar policy against the American revolutionaries. His officers obtained "general warrants" to engage in massive document sweeps without any proof that they belonged to members of the anti-British conspiracy -- folks we might now call terrorists. As the Supreme Court has repeatedly remarked, this use of general warrants was "abhorred by the colonists" (See eg, US v Kahn 415 US 143), and motivated the Fourth Amendment's demand that "no Warrants shall issue, but upon probable cause... describing the place to be searched, and the persons or things to be seized."
In my view, Judge Leon makes a compelling case that modern bulk collection is simply a high-tech version of the royalist general warrant: a paradigmatic violation of the Fourth Amendment.
Others will disagree. But at the very least, they should explain where the judge went wrong. Yet the president's advisors avoided this task.
It's not hard to figure out why. Their report is dated December 12; Leon's decision was published on December 16. Before that day, Leon's opinion was only shared by some scholars and civil libertarians in Congress and the larger community. Nobody with real power had publicly challenged the narrow view of the Fourth Amendment developed by the secret FISA court. So the report was simply following conventional wisdom in begging the big constitutional question.
Judge Leon has shattered this false appearance of constitutional consensus. President Obama should bring the judge's opinion along with his advisors' report for holiday reading. He should also ask his Office of Legal Counsel to wrestle with the original understanding of the Fourth Amendment, and its enduring significance. Even if the president and his lawyers reject the judge's ultimate conclusion, they can't help but recognize that the case against bulk collection is, at the very least, very substantial.
This minimalist conclusion should make a big difference when the president makes his final decision on his advisors' recommendations in January. In supporting the report's recommendation to continue a modified form of bulk collection, Obama would already be making a big constitutional concession to the intelligence community. He should not go further and gut the main reform proposals advanced by his advisors to prevent the clear and present dangers of abuse.
Their 46 point reform program is far more comprehensive than anything under consideration in Congress. It not only transfers mass collection from the NSA to private phone companies, but requires the NSA to persuade a FISA court judge before it can gain access to particular phone records (except in a true emergency). It also calls for similar legislative restrictions on other dragnet powers granted by Congress after the panic provoked by September 11th.
The report takes the same systematic approach in reconstructing the FISA court, vindicating the individual's right to protect privacy through encryption technology, and reasserting the principle of civilian control over the military's relentless effort to expand the scope of its control over cyberspace.
President Obama should not allow the NSA to convince him that this comprehensive program is merely an idealistic wishlist that ignores the endless threats of the twenty-first century. He should treat the reform initiative as the constitutional minimum required to keep the high-tech dynamo from spinning entirely out of control.
The president, in short, is at a moment of truth. If he fails to take constitutional leadership, the courts and Congress will try to fill the gap, generating familiar scenes of conflict with a reluctant executive branch.
America deserves better.
Bruce Ackerman is professor of law and political science at Yale. His new book, We the People: The Civil Rights Revolution will be coming out in February.