DC Circuit Judge: ‘Metadata Collection Entirely Consistent with Four Amendment’

[Valin]

National Review/The Corner:

Andrew C. McCarthy

November 21, 2015

 

The United States Court of Appeals for the D.C. Circuit has denied a request to rehear a challenge to the National Security Agency’s bulk collection of metadata – i.e., telephone usage information but not the content of conversations. In a concise concurring opinion, Judge Brett Kavanaugh explains what I have covered here several times (often, in vain attempts to convince Senator Rand Paul of his folly): there is nothing unconstitutional about the government’s acquisition and storage of records that are the property of the telecommunications companies, not of the users of the service.

 

Judge Kavanaugh writes:

 

(Snip)

 

While the law has always been on our side, I conceded earlier this year that the national-security Right lost the public debate over metadata collection because government officials failed to illustrate a convincing connection between government access to this data and the detection/disruption of terror cells and plots. In the atmosphere of the time, the public’s justifiable distrust in government (see, e.g., Obama administration use of IRS to harass political opposition) could not be overcome by showing the program’s constitutional validity and internal checks against abuse (e.g., regular judicial and congressional oversight). That is why the extremely flawed USA Freedom Act was passed.

 

Obviously, our threat environment has become more perilous since then. It is welcome to have a straightforward, authoritative legal justification for the program. But, apart from its propriety, we still have to convince the public that the program is necessary.