Constitution Check: Have checks and balances failed to work on telephone spying?

Lyle Denniston looks at the movement toward placing an important safeguard in the secret court that authorizes the government to scan data about potential terrorist threats.


“The National Security Agency has broken privacy rules or over-stepped its authority thousands of times each year since Congress granted the agency broad new powers in 2008, according to an internal audit and other top secret documents.”

 – Barton Gellman, reporter for The Washington Post, in a front-page article on August 16 , describing the contents of some added secret documents that the newspaper said it had obtained in leaks by former NSA analyst Edward Snowden.

“The Foreign Intelligence Surveillance Court is forced to rely upon the accuracy of the information that is provided to the court.  The court does not have the capacity to investigate issues of noncompliance, and in that respect the court is in the same position as any other court when it comes to enforcing compliance with its orders.”

 – U.S. District Judge Reggie B. Walton, who also serves as the chief judge of the special secret court that reviews government requests for permission to conduct electronic eavesdropping in the U.S. and abroad, in comments in a letter to The Washington Post, quoted by the newspaper  on August 16.


For all the authority that the Constitution gives to the national courts, and that can be awesome in its scope, the founding document endowed the courts with very little power of enforcement.  Article III gave the courts power to declare the law, but almost no power to command obedience.

That is why Alexander Hamilton, in the Federalist Papers, said the courts being created by Article III “will always be the least dangerous to the political rights of the Constitution.”  (By “political rights,” Hamilton there meant both the prerogatives of the presidency and Congress, as well as the individual liberty of the citizenry.).  The judiciary, he added, “must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

A classic example in American history of this dependence was the frustration of the Supreme Court and lower federal courts in the 1950s with the pace of racial desegregation of public schools in the South, with judges ultimately having to depend upon federal troops and presidential cooperation to enforce some of their decrees.

Something of that same judicial frustration seems apparent in the comment, quoted above, by Judge Reggie Walton, the head of the secret court with authority to authorize the government to sweep international electronic communications to scan for data about potential terrorist threats.  The judge was at least implying that the federal government has sometimes been lax in obeying limitations that the Foreign Intelligence Surveillance Court put on the National Security Agency.

The law that created the special court requires it to impose some limitations on such eavesdropping, in order to minimize the violation of Americans’ constitutional right of privacy.  But, because that court has always operated in nearly total secrecy, the nation does not know just how far that court may have gone to curb potential abuses of the permission it was giving.  Some idea of that may be known in coming days, as the special court begins to release some of the texts of its opinions in response to NSA requests.

As the nation has learned, from the leaks by former NSA staff member Edward Snowden, about the immense reach of the NSA’s surveillance, President Obama and operators of the government’s intelligence apparatus have made strenuous efforts to show that the power was being kept in check by “checks and balances,” especially by the court that Judge Walton now leads.

The Walton letter, though, is a quite a strong indicator that the “check” imposed by that court is not nearly as robust as has been suggested, or at least implied.  Without its own authority to police the “minimization” controls it was legally obliged to lay down, the court – the nation now knows – has not prevented many, perhaps frequent lapses by NSA operators.

But the traditional handicap that the secret court functions under, in its dependence upon the good faith of the NSA, is not the only problem with its oversight of what NSA actually does.  At least as important is whether the court’s internal processes are designed in such a way that the court really has not actually imposed very many “minimization” limitations in the first place.

When the government wants to do electronic surveillance and asks Judge Walton’s court for an order allowing it, the government is the only party appearing before that court.  In that respect, it is unlike any other federal court; all of the others do their business with two sides, usually opposing sides, putting their arguments before the court.   That is what judges and lawyers call the “adversarial process,” and they praise it as traditionally the best way to help courts do justice.

Like some of the critics of the reported abuses by the NSA, President Obama has recently indicated that he, too, has come to accept that it might work better for the “adversarial process” to be instituted at the secret court, with a privacy advocate allowed to challenge the government’s requests for surveillance authority.

If that were to be put in place, at the front end of the secret court’s review, then the problem of avoiding abuses later on might well be lessened.  A total elimination of privacy violations is probably not achievable, in programs as vast as those conducted by the NSA, but at least a lessening might be a gain for telephonic privacy.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.