The Verizon Logs: No Checks, No Balances

The judiciary defers to the legislature. The legislature defers to the executive. And the executive says it's implementing what the lawmakers and the judges decided.
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Rick Wilking/Reuters

Glenn Greenwald's remarkable scoop about a secret court order authorizing the government's sweeping collection of millions of telephone records from Verizon customers is hard to fathom but easy to explain. The order, signed by a federal judge who argued two years ago that the Affordable Care Act represented an illegal government intrusion into the private lives of citizens, symbolizes a complete breakdown in the political system of "checks and balances" we teach our children about in social studies classes.

Each branch of government is complicit in this. No branch of government was willing or able to stop it. The functionaries of the executive, legislative, and judicial branches figured out a way not just to keep it all secret but to be able to justify this warrantless surveillance by claiming it was ordained by another branch. The judiciary says it must defer to federal lawmakers. Those federal lawmakers say they must defer to the president's war powers. And the White House says it's just following what the lawmakers have enacted and the judges have interpreted.

It does not have to be so. Though such invasions of privacy may seem inexorable since 9/11, and although we've been through this drama before, there is nothing sacred about the statutory provision upon which the Verizon order is based. Congress could solve the problem -- if it is a problem -- by amending Section 215 of the USA Patriot Act to expressly prohibit this sort of mass trawling for private information. Or the White House could humbly interpret the section in a less aggressive fashion. Or the federal judiciary could at last stand up for the Fourth Amendment.

The irony here is that by trying not to own this new round of domestic surveillance each branch of government, in its own way, now owns it more fully. And, not for nothing, so do we, the American people. We've permitted our federal lawmakers to enact and then renew this provision of the law. We've enabled our executive branch to undertake aggressive surveillance measures. We've tolerated a shocking level of judicial deference with core individual privacy rights at stake. The Supreme Court has never come close to ruling on Section 215.

And in return for this power over our privacy, we have demanded neither accountability nor transparency from our government. A secret court order from the judiciary authorizes a secret round of warrantless surveillance from the executive that our legislators are duty-bound not to discuss in public. We shouldn't be surprised the government is doing this in our name because we have allowed the government to do this in our name. In fact, we have encouraged the government to do it in our name so that we can pretend to feel secure. So, tell me, how secure do you feel this morning?

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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