Supreme Court Justice Antonin Scalia said Wednesday that the courts ultimately will have to determine the legality of surveillance programs by the National Security Agency.
And he’s not sure that’s a good thing in an era of complex security threats against the United States.
Scalia told the Northern Virginia Technology Council that questions about how much information the NSA can collect about Americans’ telephone calls and under what circumstances the agency can monitor conversations are best answered by the elected branches of government.
But he said that the Supreme Court took that power for itself in 1960s-era expansions of privacy rights, including prohibitions on wiretapping without a judge’s approval.
“The consequence of that is that whether the NSA can do the stuff it’s been doing … which used to be a question for the people … will now be resolved by the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed,” he said.