Indeed, one of the most instructive aspects of the NSA scandal is the way the agency has succeeded, for an extensive period of time, in warding off legal challenges to the constitutionality of its surveillance programs. This is instructive from the point of view of libertarian theory, since it illustrates the degree to which the much-vaunted “checks and balances” within the State apparatus, highlighted in the recent Obama speech, are really illusory. In practice, the judicial and executive branches of government tend to act as a legitimizing mechanism for the actions of government agencies, with rare “checks and balances” and “reforms” coming only when the legitimacy of the system is under potent attack from some outside source.
The NSA has taken great advantage of the symbiosis between the executive and judicial branches of the State, having implemented long-running programs of lawless surveillance and phony judicial review. The modus operandi of the agency in these matters has been to hide behind various secrecy requirements which have been used to hamstring attempts at open judicial review, ensuring that scrutiny of its programs and their legal basis is kept away from the prying eyes of the public. This has included the use of secret courts, where other parties are not represented and are not privy to proceedings. It has also included the use of secrecy requirements in evidence controlled by the NSA, which prevents people from showing that they have standing to challenge the agency’s programs in court, or mandates that such matters are “state secrets,” beyond the scope of judicial review.