Let Supreme Court Decide if NSA Surveillance Is Constitutional, Key Senator Says

A federal judge's ruling that the National Security Agency's surveillance programs are likely unconstitutional sent shock waves through Congress, which remains divided over how much—or whether—to curtail the NSA's data collection.

As some members concerned about safeguarding civil liberties seized Monday's opinion as a sign of progress, Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., said the Supreme Court—not Congress—should decide whether the sweeping surveillance is constitutional.

"My hope is that the Supreme Court will take this case," Feinstein told reporters Tuesday, one day after U.S. District Court Judge Richard Leon described the government's ability to analyze personal communications as "almost Orwellian" and likely a breach of the Fourth Amendment—especially since the government failed to demonstrate that it hampers terrorist activity.

Feinstein's committee, which helps oversee the program, has been operating under the assumption the program is constitutional. Now, it's time for another look, she said, some three decades after a legal precedent was set in a 1979 Supreme Court case that upheld the FBI's collection of phone records in criminal investigations. "We don't want to do what's unconstitutional," Feinstein said. "Those of us that support the program support it because we believe it's one tool among others that helps keep the nation safe."

The 1979 decision, Smith v. Maryland, was made in a completely different environment when it comes to threats facing the country, Feinstein said. "There wasn't terrorism. 9/11 obviously hadn't happened. A number of other attacks and attempted attacks hadn't happened, let alone the enormous spiraling of terrorism attacks around the world—an 89 percent increase in deaths from terrorism in 2012 than in 2011," Feinstein said.

Still, now that the surveillance programs have become intensely controversial, she said the high court should settle the issue "once and for all."

Since former NSA contractor Edward Snowden began leaking information about the government's sweeping surveillance programs to the media earlier this year, measures to curtail—or, alternatively, codify—parts of the program have been swirling on Capitol Hill. Feinstein is pushing her own reform efforts, which critics contend do little to reform the NSA beyond some transparency checks, and instead serves to codify many existing surveillance programs.

She has competition: Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., is pushing a bill along with Intelligence Committee member Ron Wyden, D-Ore., that would restrict collection of metadata (where the calls originate and which phone picks up, and the dates and times of calls); appoint a special advocate to oversee the secret Foreign Intelligence Surveillance Court; and require the NSA to be more forthcoming about its surveillance activities.

The bill mirrors the House's Freedom Act, introduced by Rep. Jim Sensenbrenner, R-Wis. Since the Snowden leaks, Republicans and Democrats have united on the issue, but major moves to defund the program responsible for phone-call metadata collection have failed, albeit by narrow margins.

Now, Leon's opinion has the potential to undercut Feinstein's own reform efforts and further strengthen support for the Freedom Act, which has 115 cosponsors in the House. Leon's ruling is a "big wakeup call for those who back the status quo," Wyden told reporters. "That a major federal judge described these practices as 'Orwellian' is not typical.… You've got to change the laws."

House Judiciary Committee ranking member John Conyers, D-Mich., praising the court ruling, says Congress must "intensify its examination of the NSA's telephone metadata program and other surveillance programs like it" as a result of it. He's calling for more "legislative hearings aimed at curing their constitutional defects."

Though reform advocates are championing Leon's ruling, there's no guarantee it would hold as the case continues. Leon's ruling is a break from those of at least 15 federal district court judges who have sat on or currently sit on the FISA Court and reauthorized the program, Feinstein said. And just last month, Feinstein noted, a judge from California's Southern District said the NSA data-collection program was constitutional, supporting the FBI's use of phone information provided by the NSA in the case of Basaaly Moalin, who was charged with conspiracy and providing material support to terrorist group al-Shabaab.

Surveillance reform may in the end come from both Congress and the courts—not to mention the White House, which is also looking to make its own reforms. There's room for both to investigate the issue and complement each other, Senate Armed Services Committee Chairman Carl Levin, D-Mich., said. "We should look at the policy implications, but the courts will decide the constitutionality."

This article appears in the December 18, 2013, edition of NJ Daily.