This article examines the controversy surrounding bulk telephone metadata collection that has ensued since their disclosure in June 2013. The author analyzes the “use of tangible things” provision to acquire telephony metadata, including limitations on this practice, the statutory issues such a practice raises, and the ways in which the Foreign Intelligence Surveillance Court has decided on the issue since 2006. This article concludes that the Executive’s response, as delineated in a January 2014 speech, has yet to be fully implemented; however, the author argues that the disclosures have nonetheless raised new questions about the relative values of privacy and transparency in US intelligence.
Many labels have attached to United States v. Klein, the venerable Reconstruction era Supreme Court decision that established some undefined limits on congressional control over federal law and federal courts. It has been called “opaque,” “deeply puzzling,” “disjointed,” “Delphic,” “generally difficult to follow,” “exaggerated,” and “dead wrong.” Klein is a case of substantial significance, although no one really knows how or why. Nevertheless, it has achieved a cult-like following among academics, advocates, and some judges.
In a recent article, I attached a new label to Klein – myth. In this article, I explore the Klein-derived issues in two major pieces of national security legislation enacted as part of the ongoing struggle against terrorism. The first is Section 802 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008, which granted retroactive immunity from civil liability to telecommunications providers for assisting the federal government with arguably unconstitutional warrantless domestic surveillance between late 2001 and early 2007. The second is the Military Commissions Act (MCA) of 2006, which in several provisions creates adjudicative mechanisms for dealing with terror suspects and simultaneously limits the scope and manner of judicial involvement in those cases.
In Klein, the Supreme Court struck down an 1870 law governing claims by pardoned southern property owners seeking to recover proceeds in the Court of Claims for property confiscated during the Civil War. The law prohibited any claimant who used an uncontested pardon to establish loyalty to the Union from recovering proceeds; instead, it required that courts treat the pardon as conclusive evidence that the claimant had been disloyal and thus was not entitled to recover. The legislation was intended to limit recovery by disloyal southern property owners (particularly cotton growers, such as the claimant in Klein, who had acted as sureties for Confederate officers). Congress sought not only to undo the lower-court decision in favor of the claimant in Klein (which then was pending onappeal), but also to undo the effects of the Court’s decision holding that receipt of a pardon rendered a property owner innocent in law.
The opening phrase in Charles Dickens’s Tale of Two Cities nicely captures the national security challenges confronting the nation as a new administration takes office. After the stunning failures of the preceding Administration, Obama’s inauguration in November 2008 was greeted with euphoria. Obama’s bearing, approach and outlook seemed to offer a “just in time” rescue for national security policies run aground. Now, as the day-to- day reality of governing sets in, it is increasingly clear that the nation will need every bit of the new President’s heralded thoughtfulness and calm. Obama seems an excellent example of Ernest Hemingway’s definition of courage as “grace under pressure.” Even without considering the economic debacle confronting the world and its impact on global markets, the national security concerns confronting the United States as the world’s leading power are daunting.