With it becoming increasingly clear every day that Congress will not take any substantive action to stop NSA spying, some privacy advocates have begun to pin their hopes on the federal courts.
If history serves as any indication, they will find themselves equally disappointed with the judiciary. Courts tend to defer to the government, especially when it comes to “national security.”‘
An Oct. 27 AP story highlights the increasing focus on the courts in the battle over warrantless spying.
While Congress mulls how to curtail the NSA’s collection of Americans’ telephone records, impatient civil liberties groups are looking to legal challenges already underway in the courts to limit government surveillance powers.
But do we really want to trust our privacy to politically connected lawyers? Do we really trust that federal judges will aggressively rein in federal power?
This seems like a rather untrustworthy donkey upon which to pin our hopes.
Historically, federal courts have deferred to Congress and the president when it comes to issues of “national security. The internment of more than 100,000 Japanese Americans serves as a prime example.
It doesn’t take a legal genius to understand that caging tens of thousands of people based on their ethnicity, without charge, simply because they “might” do something damaging to America, violates numerous rights constitutionally protected under the Fourth, Fifth and Sixth Amendments.
But the legal geniuses concluded in Korematsu v. United States that the threat to national security trumped the individual rights of Japanese, German and Italian-Americans.
We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.
We live in a similar state of fear and war hysteria today. America remains locked in an apparently endless “War on Terror.” Agencies like the NSA swear they have to vacuum up all of our private information in order to “protect us from the terrorists.” We have a war on our hands, and as Justice Black pointed out, “hardships are part of war, and war is an aggregation of hardships.”
So, again I have to ask the question: do we really wanted to trust politically connected lawyers serving as federal judges to protect our privacy from federal overreach?
I say, “No!”
But it seems many feel like we have no other options. Almost 40 years after Sen. Frank Church warned Congress about the dangers of the NSA and the potential for “total tyranny,” it has failed to act. Many seem to view the federal courts as the last great hope. ACLU deputy legal director Jameel Jaffer summed up conventional wisdom in an interview with the AP.
To the extent that Congress is authorizing mass surveillance of Americans’ telephone calls, the Constitution has something to say about that — and only the courts are in a position to enforce the Constitution.
But Jaffer misses one important player that can help enforce the Constitution: state and local governments.
It’s true that in a legal sense, states cannot stop warrantless spying. But they can play an important role in ending it. James Madison provided a blueprint in Federalist 46, arguing that when the federal government commits “unwarrantable” acts, states can serve as a check in its power by “refusing to cooperate with officers of the Union.”
Since the federal government depends on state and local cooperation and resources to accomplish its spy mission, states can hinder their efforts and create significant impediments simply by pulling the plug. Under the well-established anti-commandeering doctrine, the Supreme Court has repeatedly affirmed that the federal government cannot force states to enforce or provide resources for federal actions. In other words, nothing says states have to assist the federal government in violating your rights.
For instance, the NSA data facility in Utah will reportedly require some 1.7 million gallons of water per day to cool its super spy computers. The city of Bluffdale supplies that water. The state of Utah can turn it off!
Depending on the federal government to rein in its own programs and give up power without some external prodding will ultimately prove a failure.
The courts won’t protect you.
Congress won’t protect you.
The president won’t protect you.
You need to take action to protect yourself.
Activism has little impact on Congress. It has zero impact on federal courts. But your phone calls and appearances at your state capitol can truly impact the political process at the state level. Your U.S. House representative and your U.S. Senator will ignore your calls. Trust me, your state reps will listen.