May 15, 2006 3:14PM

NSA Spying and the Supreme Court

By Mark Moller

As I noted in an earlier post, I’m supportive of Bob’s legal argument that the President’s NSA surveillance program is illegal and unconstitutional. (My level of certainty on this: moderate). But for me this doesn’t settle the matter. There’s a separate question: What should the Supreme Court do about it?

For me, this is the hard but all important question. In Baker v. Carr, the Court suggested (in so many words) that justices may want to avoid resolution of a constitutional question if, for example, there is a significant chance another branch might ignore its decision. The reason for this seemingly weak-kneed approach to constitutional adjudication is straightforward. The Supreme Court, a tribunal of nine geriatric lawyers, doesn’t have much muscle. It can’t arrest a recalcitrant President. It relies on the force of its mystique as the oracle of our fundamental law and its soft political power to confer public legitimacy on political branch actions. That’s generally enough to compel the grudging respect and deference of Congress and the President. But in extraordinary times, its possible that a headstrong President convinced of the rightness of his mission, and backed by popular support and a waffling Congress, might simply ignore the Supreme Court. If that happens too often, the Court risks losing its power to command. And a disrespected Court that is repeatedly ignored is far, far worse for the long-term protection of liberty than a Court that occasionally ducks the wrong fight.

So what should the Court do about the NSA surveillance program?

There are seven red flags counseling caution:

  • First, early polls suggest the program seems to be popular with the public (although, admittedly, this may change).
  • Second, the actual tangible harm these programs pose to individuals is rather slight.
  • Third, Congress to date seems willing to go along with the program.
  • Fourth, these programs are difficult to detect: Secret surveillance programs are just that—they are instituted in the shadows by relatively small, committed cadres of spies.
  • Fifth, they respond in part to fears of a catastrophic risk: the possibility, however remote, of a nuclear terrorist attack on American soil.
  • Sixth, some surveillance, such as mass data profiling, appear nearly impossible to undertake under standard interpretations of statutory surveillance warranting procedures.
  • Seventh, reasonable people can disagree about the wisdom of this kind of surveillance.

    Given these six variables: popularity, slight immediate harm to individual citizens, congressional acquiesence, secrecy, high stakes, difficulty complying with current law, and reasonable policy arguments for executive policy, there’s a good reason to think the administration might ignore a Supreme Court that orders the President to take surveillance programs offline.

    What should the Court do then if presented with a legal challenge?
    Here’s one obvious alternative: It might simply leave the question to lower courts for the time being. The Court doesn’t have to take every constitutional challenge that comes its way. Lower courts have passed on the scope of the President’s foreign affairs authority to conduct warrantless national security surveillance—without Supreme Court review. (See, for example, United States v. Smith, 321 F. Supp. 424 (C.D. Cal. 1971)).

    If the Court stayed above the fray, lower courts would likely disagree on the merits of the President’s arguments. The administration would press ahead, citing the line of lower court precedent in its favor. But another, competing line of precedent would remain—casting doubt on the President’s actions, raising the cost of the program to the executive, and giving support to his political opponents. At a later date, those decisions might be affirmed when the risk of presidential resistance has faded (perhaps due to a change in administration or a change in control of Congress).

    But the Court might press against the President in areas where the President is on less secure ground: Indefinite detention of American citizens as enemy combatants without a civil trial is one area where the President’s legal arguments are weak, the harm to individuals is large, public opinion isn’t wholly on the President’s side, and congressional acquiesence isn’t a given. A Supreme Court opinion on this point might bolster political will against executive power.

    The Court might also encourage private resistance to the surveillance program by taking appeals on collateral issues--such as the scope of the state secrets abstention doctrine, which counsels in favor of dismissing claims in which "state secrets" are central to determination of liability. As George Washington University's Orin Kerr has noted, the administration is likely to invoke the doctrine in civil litigation against telecommunications companies. Narrowing the doctrine will expose telecommunciations companies to greater risk of civil liability for handing over its data--deterring perfunctory corporate cooperation with the NSA.

    Should the Supreme Court follow this route--or something like it?

    Absent a change in the permissive political climate on the surveillance issue, I reluctantly tend to think yes (Degree of confidence: low).