Today, the Supreme Court issued its ruling in Salinas v. Texas. Surprisingly, the Court did not answer the primary question court watchers were expecting, which was whether a prosecutor can deride a person’s reliance upon the right against self-incrimination when that person has not been arrested. The Court said it did not have to reach that question because the person here, Salinas, never really properly invoked his constitutional right against self incrimination.  And because he didn’t, there was nothing wrong with the prosecutor’s comments at his trial. This is a lousy ruling.

A bit more background. Everyone knows from TV shows, that once a person is arrested and the police start an interrogation, the Miranda warnings are given.  “You have the right to remain silent, right to a lawyer if you cannot afford one and anything you say can be used against you in court, etc”  The Supreme Court has also held, properly, that if anyone declines to take the witness stand during the trial, the prosecutor can’t attack that choice to the jury with comments like, “He could have taken the stand to tell us his side of the story, but he didn’t. That tells us quite a bit, doesn’t it?” The rationale against allowing that sort of “evidence” is that if one really has a right against self-incrimination, the government should not be permitted to attack it. The prosecutor must use other evidence to persuade the jury of guilt.

So, again, the government can’t offer negative comments on the choice not to testify and may not offer negative comments on a person’s choice to remain silent after an arrest. Salinas brought the question, what about silence before an arrest? Cato filed a brief saying prosecutors should also be barred from attacking pre-arrest silence.

Justice Alito announced today that the main question is again postponed for another day. The Court said Salinas simply remained silent and did not “formally” invoke any constititional right, so prosecutors could offer commentary to the jury. What’s most disturbing about the ruling is its discussion of “burdens.” The plurality put the onus on the individual, not the government. That is the profound error in the decision. As the dissenters noted, in the circumstances of the case, it was evident what Salinas was doing. Unfortunately, the Supreme Court has complicated the law for persons who are the most vulnerable–persons who lack education, persons who do not speak English very well, persons who may suffer from mental problems, and persons who may be under the influence of alcohol. This is a bad day for the Bill of Rights.

Last week, my colleague Roger Pilon and Prof. Richard Epstein co-wrote a Chicago Tribune op-ed defending the National Security Agency’s bulk metadata collection program. I had not, initially, intended to respond directly: Cato scholars often disagree among themselves—as Roger and I long have in this area—and normally it suffices for us each to state our own affirmative arguments and let readers decide for themselves which is most convincing. However, as I now see that some observers—and in particular, a significant number of libertarians—have mistakenly taken this to mean that “Cato” supports the NSA program, which continues to dominate the news, I feel it’s necessary to say something here about why I (and, as I believe, the majority of my colleagues) reject that view.

In an area where so much remains secret, it is impossible to have a sensible debate unless we are at least clear on the public facts.  So before I address their broader arguments, it is necessary to correct a few important factual errors in the Tribune piece. Pilon and Epstein write:

The names linked to the phone numbers are not available to the government before a court grants a warrant on proof of probable cause, just as the Fourth Amendment requires.

This is incorrect. Nothing in the law would require a warrant to get the name associated with a number, and the public statements of FBI Director Robert Mueller directly contradict this claim.

At the risk of stating the obvious: phone numbers can often be associated with names by a simple Google search, and the NSA and FBI have access to far larger databases that would likely make such an association trivial.

But even if that weren’t the case, 18 USC §2709 allows names, addresses, and other “basic subscriber information” associated with a number to be obtained via a National Security Letter based on a certification of “relevance” to an investigation, with no need for judicial approval. As Director Mueller explained at a recent hearing, this is precisely how such information would be obtained here, assuming it were not already available.

Indeed, once that warrant is granted to examine content, the content can be used only for national security issues, not even ordinary police work.

This is also incorrect. Under 50 USC §1801, the minimization procedures governing information acquired from electronic surveillance shall “allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes.” As the FISA House Report makes clear, this does not refer to terrorism or espionage related crimes, which can already be retained and disseminated as “foreign intelligence information,” but rather to information about crimes “totally unrelated to intelligence matters.”

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The revelation that the National Security Agency has been indiscriminately collecting Americans’ phone records using sweeping bulk orders issued by a secret court has sparked enormous controversy. Yet we know that at least in the first few years after 9/11, something very similar occurred without any judicial process at all, as first reported by USA Today in 2006. Though that story was dwarfed at the time by the controversy over the Bush administration’s warrantless wiretap program, it was actually the call records program that provoked a dramatic showdown between the White House and Justice Department, nearly triggering a mass resignation when the president threatened to reauthorize it over the objections of the acting attorney general that it was unlawful.

The controversy reemerged earlier this month when the Guardian published a leaked court order to Verizon’s business-focused subsidiary to produce “all call detail records,” including all “routing information,” and specifically requesting communications “wholly within the United States, including local telephone calls.” The order made it clear that the program continued, and was not merely large-scale but sought literally all domestic records. Moreover, it raised concerns about the Foreign Intelligence Surveillance Court’s interpretation of §215 more generally. The court had apparently determined that an authority to demand “any tangible thing” from nearly any person or entity could be exercised in a completely non-particularized way: Give us everything, we may eventually decide some of it is “relevant.” But it’s still not wholly clear when and why the FISC got involved in the metadata program—and how much of it may still bypass judicial supervision.

It’s clear from the original USA Today story that the metadata program in its original incarnation “didn’t need a court order—or approval under FISA—to proceed.” It’s also relatively clear that something changed around 2006. Statements from the program’s defenders in Congress indicate that the current version of the program, involving orders reissued at three-month intervals, has been operating for seven years. Moreover, you can read between the (heavily redacted) lines of a March 2008 Inspector General report on the use of §215 in 2006 and see intimations that “unlike in previous years,” the authority was being used in some programmatic way that would not be included in the IG’s discussion or metrics.

Yet the numbers reported annually for §215 orders, as Amie Stepanovich of the Electronic Privacy Information Center reminded me, are hard to square with a major shift to reliance on the authority for metadata at that time. Only a handful of §215 orders were issued in the subsequent years: six in 2007, 13 in 2008, and 21 in 2009. Even if those metrics only count the “primary order” authorizing acquisition from multiple providers, and not the “secondary orders” issued to each provider, that seems low. You’d still need at least four each year for each type of bulk order, and the Wall Street Journal has reported that the program reaches far beyond telephone data to encompass “records from Internet-service providers and purchase information.”

Instead, we see two enormous jumps in orders starting in 2010. That year, there were 96 orders, of which a surprising 43 were modified. That seemed odd to observers because §215 authority is so broad, requiring only “relevance” to an investigation, that the court would rarely have occasion to intervene—unless what was being demanded was so mindbogglingly expansive that it strained even that flaccid standard. We then see another big jump in 2011, to 205 orders (176 modified), which levels off in 2012 at 212 orders (200 modified). What was going on there? If the NSA bulk metadata program moved over to reliance on §215 in 2006, why is there no sign of anything like it in the numbers until four years later?

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