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Judicial Oversight Over The NSA


The NSA domestic wiretapping program has been under intense scrutiny since Edward Snowden unveiled it last spring, but to many the most troubling aspect has been the lack of strong judicial oversight of the program. Unlike most government programs, responsibility for overseeing the wiretapping project has been left up to the secretive FISA courts, which critics say do not use the adversarial system typical of American courts and where decisions are handed down in secret.

Yet in a recent case, one federal judge at a conventional court is hinting that he may rule in favor of increased right to privacy where wiretaps are concerned. While the Judge noted that part of the case may be thrown out due to a lack of jurisdiction, he seemed broadly sympathetic to the argument that Congress couldn’t have properly authorized the program given that so few members knew of its existence. The WSJ reports:

Stuart F. Delery, the head of the Justice Department’s Civil Division, said Judge Pauley should wait for the Supreme Court to speak authoritatively on the issue of bulk data collection at some point rather than try to resolve the matter on his own. He defended the program as a necessary tool to help the NSA track who is in contact with terrorism suspects that “has been repeatedly authorized by all three branches of government.”

But Judge Pauley suggested that many lawmakers didn’t know what they were approving when they reauthorized the Patriot Act in 2010 and 2011. The Senate and the congressional intelligence committees were briefed on the program, but other members were not.

Could the judicial review system be working? In any case, more please.

Serious judicial oversight of NSA and other government surveillance programs is clearly part of getting the right balance between the right to privacy and the government’s legitimate need to monitor threats. Let’s hope both the courts and Congress think these issues through. The executive alone cannot be trusted with immense and almost unlimited power.

[Courtroom image courtesy of Shutterstock]

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  • Matt_Thullen

    While increased judicial oversight may be a good thing, if a federal judge bases a decision on the notion that Congressmen and Senators “didn’t know what they were approving,” this could lead to all sorts of mischief by the courts.

    First off the bat would be to strike down the ACA, as even the House majority leader indicated that she had no clue what was in the bill, as we had to “pass it in order to find out.” While that may be good from a utilitarian prospective, I fear we’d find a race between conservative and liberal judges to start striking down laws they don’t like based on this reasoning.

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