Judges vs. Surveillance

[Commentary] As if on political cue, a federal appeals court ruled that an important antiterror surveillance program is illegal. The decision lands eight months after the Second Circuit heard arguments but just as Congress opens a debate about reauthorizing intelligence gathering. Even assuming this timing is coincidence, ACLU v. Clapper is vainglorious judging.

The court’s musings get counterterrorism backwards: Assembling a historical repository of metadata is a precondition for identifying threats. This is reasonable because intelligence isn’t an on-demand service but an ongoing process of identification and interception, and you can’t connect the dots without, well, dots. The Second Circuit also ignores metadata’s robust legal oversight, including from the Congressional intelligence committees and the Foreign Intelligence Surveillance Court. Framing metadata as a matter of statutory interpretation and ducking the Constitution also ignores that the Supreme Court has held since 1979 that the Fourth Amendment does not protect call records. The Administration ought to appeal to the Supreme Court -- to vindicate precedent and preserve this authority. And judges who pose as so reverent of the legislative process should leave the debate about how best to protect the nation to Congress and the executive branch.