The Supreme Court May Be the Best Hope to Stop the NSA

Congress couldn't draw back the surveillance dragnet. But the justices might.

Now that the House of Representatives has voted down an amendment that would have significantly restricted what information the National Security Agency can collect about Americans, the best hope of curtailing the spy agency's powers lies with the courts. And while NSA critics have failed to rein in the eavesdropping agency through legislative action, they may have more luck with the third branch of government -- thanks to a leaked classified document, a rare bit of good fortune for a leading civil liberties group, and a sympathetic justice of the Supreme Court.

The fact that more than 200 lawmakers voted against a key NSA collection program, and one authorized by the long-controversial Patriot Act, represents a victory of sorts for surveillance critics. There has rarely been such a pronounced opposition to surveillance authorities, and the fact that the Obama administration had to mount a full court press to preserve the program, and still only eked out a narrow win, may give opponents some hope that a legislative effort could be mounted again with a different result. But there is no clear next step legislatively. No bill or amendment on the table. Yet there is a path forward on the judicial front.

Challenges to the NSA's surveillance programs have historically failed in large part because no one has been able to prove he had his communications scooped up in the agency's electronic dragnets. That information is an official secret. The American Civil Liberties Union, one of the most stalwart opponents of the NSA's broad surveillance authorities, failed to challenge the agency's operations in the Supreme Court because of this Catch-22. It couldn't prove it had been spied upon, even though the government acknowledged -- generally -- that such spying does occur.

But now, classified documents released by the ex-NSA contractor Edward Snowden leave no doubt that at least one telecommunications company, Verizon Business Network Services, has handed over bulk telephone metadata to the NSA under a court order.

The key for a new challenge by the ACLU, which it filed last month, which it filed last month in U.S. District Court, is that it's a customer of Verizon Business Network Services. Not just Verizon, but this particular division of Verizon. This is the closest thing the group has had to a smoking gun, and conceivably it could be sufficient to establish legal standing to bring the lawsuit. The case could end up in the Supreme Court.

But to succeed, the ACLU -- or any challenger -- will have to convince jurists that the long-standing legal treatment of metadata is outdated and needs to be changed.

The NSA's collection of this data is enabled by a 1979 Supreme Court ruling that telephone numbers are not content, and therefore aren't protected by the Fourth Amendment's prohibition on unreasonable searches. A telephone customer willingly hands over his number to the service provider whenever he places a call, and therefore cannot expect that the information is private, the court found.

But at least one justice has indicated it may be time to rethink this analysis, in light of the fact that metadata is not only ubiquitous today, but can be exceptionally revealing of an individual's communications patterns, his social networks, and his movements.

"This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Justice Sonia Sotomayor wrote last year in concurrence with a ruling that said law enforcement agencies must obtain a warrant before placing a GPS tracker on a suspect's car. The question of metadata wasn't before the court, but the balance between privacy and security was.

"I, for one, doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year," Sotomayor wrote. "But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy."

The court may be primed for a reinterpretation of its own rulings on metadata, which can be even more revealing than content. But civil libertarians may not want to pop the champagne too quickly.

In that 2012 GPS case, the court also left the door open to allowing broad surveillance with a different kind of technology: drones.

The police may need a warrant to put a tracking device on a suspect's car. But it's not at all clear that they couldn't watch that individual walking down the street using a camera on a remotely piloted aircraft.

"It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy," Justice Antonin Scalia wrote in a majority opinion. But that wasn't the question before the court. The ruling left open the possibility that persistent aerial surveillance of public places may, indeed, be constitutional.

Congress has shown little appetite for clarifying these issues, and has reliably voted to expand, not limit, the surveillance powers of the executive branch. President Barack Obama's position on the issues is not only a continuation of his predecessor's, but a change from the views he held as a candidate.

In the summer of 2008, amid another debate over the proper limits of the NSA's spying powers, then-Sen. Obama voted in favor of a bill to allow the interception of phone calls and emails without individual warrants. He had initially opposed the changes, along with a provision that granted legal immunity to telecommunications companies that participated in government intelligence gathering. But as it became clearer that he would secure the Democratic nomination for president, Obama changed his stance.

"Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay," Obama said at the time, making "a firm pledge that as president, I will carefully monitor the program."

It's not clear how carefully Obama has monitored the NSA, but he and members of his administration have successfully, and vociferously, defended it in Congress. The third branch of the government is now the last, best chance for any attempt to reign in the intelligence agency and change the legal underpinnings of how it operates.

Win McNamee/Getty Images


Breaking: Every Military Option in Syria Sucks

Intervention could cost a billion per month, top officer tells senators.

Using lethal force to strike high-value targets inside Syria would require hundreds of U.S. aircraft, ships and submarines, while establishing a no-fly zone would cost as much as a billion dollars per month over the course of a year, according to a new analysis of military options there by the nation's top military officer. Another option, in which the U.S. attempts to control Syria's chemical weapons stock, would first require thousands of special operations forces and other ground forces, wrote Chairman of the Joint Chiefs of Staff Gen. Marty Dempsey. Oh, and well over a billion dollars per month.

Under pressure to publicly provide his views on military intervention in Syria, Dempsey told Senate Armed Services Committee Chairman Carl Levin what most people already knew: there are few good options. But for the first time, Dempsey provided an analysis of each option and its cost, providing new fodder for thinking about a conflict that has waged for more than two years, killed nearly 100,000 people and displaced hundreds of thousands more.

Dempsey outlined five options, including training, advising and assisting the opposition; conducting limited stand-off strikes; establishing a no-fly zone; creating a buffer zone to protect certain areas inside Syria; and finally, controlling Syria's chemical weapons. Any of those options would likely "further the narrow military objective of helping the opposition and placing more pressure on the regime," Dempsey wrote. But any or all of them could slip the U.S. into another new war. "We have learned from the past 10 years, however, that it is not enough to simply alter the balance of military power without careful consideration of what is necessary in order to preserve a functioning state," Dempsey wrote Levin in the memo, a copy of which was released publicly late Monday. "We must anticipate and be prepared for the unintended consequences of our action."

As requested after a heated exchange in the Senate on Thursday over U.S. policy in Syria, Dempsey dutifully gave the pros and cons for each option. But in what amounts to the most candid analysis of the Pentagon's thinking on Syria to date, Dempsey couched each as highly risky. Establishing a no-fly zone, for example, comes with inherent risk: "Risks include the loss of U.S. aircraft, which would require us to insert personnel recovery forces," Dempsey wrote. "It may also fail to reduce the violence or shift the momentum because the regime relies overwhelmingly on surface fires - mortars, artillery and missiles." Conducting limited strikes on high-value targets inside Syria could have a "significant degradation of regime capabilities" and would increase the likelihood of individuals deserting the regime. On the other hand, he wrote, "there is a risk that the regime could withstand limited strikes by dispersing its assets." Retaliatory attacks and collateral damage from the U.S. strikes could create large and sometimes unforeseen problems, despite the best planning.

All of this would come, Dempsey argued, at a time of enormous budget uncertainty for the Pentagon that has forced furloughs of civilian workers, cuts to programs and allowed readiness rates to drop to low levels, Pentagon officials say. "This is especially critical as we lose readiness due to budget cuts and fiscal uncertainty," Dempsey wrote. "Some options may not be feasible in time or cost without compromising our security elsewhere."

Dempsey still hedged the issue of his own view in an unclassified forum, never quite providing what he would recommend to his boss, President Barack Obama. But he also conceded that intervention in some form could make a difference. "As we weigh our options, we should be able to conclude with some confidence that the use of force will move us toward the intended outcome."

It still amounts to the start of a new conflict after more than a decade getting out of two other ones.  "I know that the decision to use force is not one that any of us takes lightly, it is no less an act of war," Dempsey wrote.

It was unclear if Dempsey's letter, intended to appease Sen. John McCain and Sen. Levin, would prompt them to move forward on his reappointment to another two years as Chairman. A few days before the hearing, a senior officer from the Pentagon had provided a classified briefing for senior Hill members and officials, according to a senior Hill staffer. But the takeaway may have been what got McCain so fired up: Pentagon officials told Hill staffers there is no clear military direction on Syria because there is no clear policy guidance from the White House.

Now Dempsey's reappointment as Chairman hangs in the balance as Levin and McCain seek additional information from Dempsey on Syria -- knowing full well that the nation's senior military officer is getting directions from the White House on Syria that are ambiguous at best.

The issue stems in part from how Dempsey handled himself last week when McCain demanded he provide his personal views on military intervention in Syria. Dempsey essentially refused to answer to McCain's satisfaction, raising the question squarely: what should military officers say when they're asked their personal opinion in public?

When senior officers shuffle up to Capitol Hill for confirmation or oversight hearings, they all must affirm their answer to one of a handful of boilerplate questions, but this one is often central to the veracity of their testimony: "Do you agree, when asked, to give your personal views, even if those views differ from the administration in power?"

It's all very pro forma. As all officers appearing for testimony do, Dempsey answered the question in the affirmative. But he seemed to trip up on it later during the hearing.

Dempsey could have known it was coming. McCain, increasingly agitated at White House policy over Syria, tested him over his views on military intervention. "Do you believe the continued costs and risks of our inaction in Syria are now worse for our national security interests than the costs and risks associated with limited military action?" McCain demanded. But Dempsey would not answer the question directly, saying he would instead share his views privately with the Commander-in-Chief, President Obama.

"Senator, I am in favor of building a moderate opposition and supporting it," Dempsey said during the tense exchange. "The question whether to support it with direct kinetic strikes is a president for a -- is a decision for our elected officials, not for the senior military leader of the nation."

McCain has now locked his confirmation until he gets more answers. There are two ways to look at Dempsey's decision Thursday before the Senate panel. Some believe the general, well regarded but not known for rocking the boat, stood his ground and took a stand against a Congressional overseer thought to be bullying the administration over its Syria policy. Others were astounded that Dempsey seemed so cocky, even arrogant, at one point shooting a question back to McCain about "recent experience" with intervention -- in Iraq.

Senior officers, experts and other observers all believe that Dempsey's number one job was to obey what any senior officer will tell you is Golden Rule of confirmations: don't filibuster, don't grandstand and get confirmed. If Dempsey was being asked an uncomfortable question he couldn't avoid, he should have politely asked to answer it in private session, they say.

"Military leaders, when they answer that question, they get from the Senate in the affirmative, they are absolutely committing themselves to providing their personal views to members of Congress," one senior officer said. But those personal views aren't always appropriate for a public setting such as a confirmation hearing, the officer said, and Dempsey did the right thing - even if he didn't do it in the right way. "In my view, it was not inappropriate for Dempsey to withhold his views in that particular setting."

Others agree, too. Some officials who are familiar with the process of preparing for testimony say commanders should be able to retain their best military advice for their commander-in-chief - not the public or members of Congress.

"Senior general officers, be they in command of a war or serving as the chairman of the Joint Chiefs, are there to serve the commander-in-chief, as advisors or commanders, giving him their best military advice."Look at judges up for confirmation: do they divulge what their decisions will be? No. Similarly, a senior general gives advice to the president. He's not appointed to give advice to Congress, nor does he feel compelled to tell, in advance, what his advice and views are to anyone besides the president."

There have been a number of cases in which senior officers are asked their opinion in a public hearing -- and some give it. Most recently, Gen. James Mattis, then commander of U.S. Central Command in April was asked how many troops he believed should be left in Afghanistan after security responsibility is completely transferred to Afghans at the end of next year. His answer: 13,600. The response, from an officer who was about to retire but had been widely thought to have been under a gag order during that command, angered some in the White House and other political types. But individuals close to his thinking believe that that was his personal opinion and he didn't mind sharing it publicly since it didn't expose any state secrets or classified information. Dempsey's predecessor, Adm. Mike Mullen, famously expressed his opinion about suspending Don't Ask, Don't Tell, telling the Senate what he thought, himself. "Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do," Mullen said in February 2010. "No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens," he said. "For me personally, it comes down to integrity - theirs as individuals and ours as an institution."

It took some prodding. But Dempsey finally spoke up, too. But by presenting the options in Syria as an array that goes from bad to worse, it's not clear if he enhanced his confirmation prospects - or made them worse. 

Alex Wong/Getty Images