While crediting the blog today, I came across a post/thread
http://aragonhitchhikers.blogspot.com/2013/11/aclu-requests-new-york-judge-to-stop.html
regarding the National Security Agency's surveillance programs. A number of students linked the NSA story to the PATRIOT Act and I believe this is incorrect.
Several of the recently disclosed NSA programs are unconstitutional in my view of the 4th amendment, but I don't think that has anything to do with the constitutionality of the PATRIOT Act because the PATRIOT Act did not authorize these particular programs.
Some NSA programs such as PRISM that collect data on Americans in an effort to identify foreign threats were authorized by the 2007 Protect America Act, which revised the 1970s era Foreign Intelligence Surveillance Act. FISA by itself was not constitutionally controversial, primarily because it regarded foreigners without constitutional protections and was a way of reigning in an executive branch that had made some questionable decisions in secret with no oversight; if anything this was a step in a more constitutional direction at a checks and balances level. The Protect America Act might help the NSA programs survive a constitutional challenge around a Commander in Chief vs. Declaration of War argument, but I'm not sure. The Bush administration didn't think some of these things needed Congressional approval; it may be that government spycraft does not require an Act of Congress to be considered constitutional, because Commander in Chief apparently means almost anything goes, too bad for Congress. It could also be that provisions of any Act that expanded surveillance in some way are inherently unconstitutional if the specific behaviors the Act was trying to legalize violated the Bill of Rights. The Bill of Rights applies to the entire federal government, so "enabling legislation" shouldn't apply. So, I think the opposite of the Bush administration: the Protect America Act doesn't trump the constitution -- thank you Marbury v. Madison -- and is therefore irrelevant to whether the NSA programs are constitutional. Declaring things legal doesn't make them Constitutional, but it does keep the government officials who had, in some cases, broken the law on orders from their superiors, safe from prosecution.
As it relates to the balance of power among the branches, on one hand, the Protect America Act law put some of the arguably illegal programs ("warrant-less wiretapping") under the jurisdiction of the Foreign Intelligence Surveillance Court (FISC), not unlike some of the provisions of the revised PATRIOT Act, and in the process Congress legalized things that had been executive branch actions justified via the Commander in Chief powers and implemented via secret executive orders. Providing some oversight while giving law enforcement immunity was seen as a trade-off to make these programs more palatable.
On the other hand, the FISC reviews and approves an impossible volume of requests and it doesn't seem to act as much of a real check on the NSA or anything else. The judges on the FISC aren't known to be civil libertarians, either, although they apparently ruled some of the NSA operations unconstitutional when it came to their attention.
The PATRIOT Act has a number of provisions, some of which I believe are perfectly understandable and good changes, while others, like the national security letters, are really creepy. National security letters are not an NSA specific thing and were known about in the abstract well before this summer. The problem with the letters is that most of them are never known about by the subjects being investigated (they are secret unless they result in a criminal prosecution) so no one can challenge one having been issued about them, having one impose a cost on their business, or the constitutionality thereof. Most of the PATRIOT Act is not constitutionally controversial but the NSLs lack proper oversight by the judiciary and raise probable cause issues.
Terrorism doesn't fit the foreign/domestic distinction as well as previous eras with uniformed soldiers and declarations of war between nation-states. The idea that the federal government has a need and responsibility to identify threats from within, and that this will require changes to the legal environment doesn't shake most people. Throwing out the concepts of 'probable cause' and 'individualized suspicion,' however, have created an unaccountable domain of government power. This isn't just about privacy today; it's about the norms of government and potential tyranny in the future. Majorities in Congress have been too willing to enact laws that expand government power with limited oversight, and the only remedy left is constitutional judicial review by Article III courts, which, not incidentally, is hard to rely on when the programs are secret in the first place. I'm increasingly thankful for Mr. Snowden's choices, without which we wouldn't know what was happening. "LIVE FREE OR DIE" -- I'll take a marginally higher chance of being killed by a terrorist over massive, unaccountable, and imperfect databases collected without warrants becoming normal and used for domestic law enforcement.
