When the Guardian recently revealed that the National Security Agency had seized millions of phone records from Verizon, it caused outrage from civil liberties groups, defiance from the executive branch, and an incredible spike in the sales of George Orwell's 1984. Among the clamor of responses, Senator Rand Paul (R-Ky.) announced yesterday that he will file a class-action lawsuit to overturn the legal ruling of the Federal Intelligence Surveillance Court (FISA) that legitimated the action.
Among the many ambiguous legal and political questions raised in the past week is whether or not Senator Paul's lawsuit would actually succeed. Charles Lane at the Washington Post has extensively detailed the legal precedents currently working against him, although his contention that Senator Paul does not have a "concrete and particularized" claim appears weak. The seizure of phone records, to Senator Paul, represents a specific violation of the Fourth Amendment.
To be clear, Senator Paul's claim holds some legitimacy. From the perspective of civil liberties, which remain a significant aspect of American legal and political identity, the NSA program is extremely troubling. And the dramatic and extensive responses to that argument further attest to that fact.
Yet, it remains relatively clear that Senator Paul's lawsuit will most probably fail.
Lane notes that the most recent legal precedent, Clapper vs. Amnesty International, "dismissed the complaint as 'a speculative chain of possibilities,'" a statement that demonstrates the core difficulty behind Paul's claims. Like the intelligence agencies it regulates, FISA operates in secret. It is very difficult to establish any sort of legal case when some of the most important elements of that case remain outside the public domain.
This is exactly why we need the lawsuit anyway.
The most significant aspect of the Verizon story, and the related leaks about PRISM, is the exclusion of the American public from the significant legal and political debates around these programs. After all, we already know that the phone companies collect meta-data on their customers and that the government has the ability to collect that meta-data for its investigations. What is surprising is that the current legal infrastructure allows intelligence agencies to perform these actions on such a broad scale with the tacit approval of both the judiciary and legislative branches (Robert Chesney and Benjamin Wittes, two of biggest names in U.S. national security law today, have unpacked this logic further at the New Republic).
By filing this lawsuit, Senator Paul may finally bring the current legal infrastructure behind counter-terrorism into the public conscience. In doing so, he may start a debate more than a decade overdue on the precarious balance between civil liberties and national security.
Of course, debates are not the same as action. When faced with the decision to choose between civil liberties and national security, Americans have constantly chosen the latter. Just yesterday, Pew released a poll showing that 56% of Americans believe that tracking American telephone records is an acceptable way to prevent terrorism, a number that has remained relatively constant since the revelations about warrant-less wiretapping in 2006.
But this is exactly why the lawsuit matters. The political legacy it creates may be far more significant than the legal one. The lawsuit will fail, but it will finally force us to understand why exactly it failed in the first place.