NSA challenge needs to ripen

The Supreme Court on Monday declined an attempt to short-circuit the appeals process and consider a challenge to the National Security Agency's bulk collection of Americans' telephone records.
It would have been highly unusual for the court to take the case this early. It also would have been highly unwise.
In December conservative lawyer Larry Klayman convinced a Washington, D.C. judge that the NSA's bulk vacuuming of phone date likely violates the Constitution's prohibition of unreasonable searches. The judge, as they generally do, put a hold on his decision to give the government time to appeal.
Just days after Klayman's case was decided, a federal judge in New York reached an opposite conclusion in a case brought by the American Civil Liberties Union. That district judge, William H. Pauley III, upheld the NSA operation as an effective "counterpunch" to terrorism.
OK, that hardly addresses the constitutional question. Searching every car traveling through Stockton on Interstate 5 would be an effective "counterpunch" to drug and arms trafficking not to mention drunken drivers. That doesn't make it constitutional.
Still, the debate over the NSA's data collection, not to mention the court cases it is spawning, are not far enough along for a full Supreme Court test. Cases generally don't get to the high court without a full airing at the circuit court level and then most often only if there are conflicting decisions coming out of the appeals courts. That serves the purpose of more fully developing the issues and the arguments around them.
As we wait, President Barack Obama has called for ending the government's control of the phone data, leaving it in the hands of the service providers. He also ordered intelligence agencies to get permission from a secretive intelligence court before accessing the records.
Obama's efforts, of course, are eye wash. The history of the Foreign Intelligence Surveillance Court has been to pretty much act as a rubber stamp for the government.
According to CNN, there were 1,856 applications in 2012 to the FISC for electronic surveillance and physical searches for "foreign intelligence purposes," the Justice Department said. None were denied, but 40 were modified to some extent. Only one such request was withdrawn by the FBI.
Clearly this is an area deserving public debate and, eventually, intervention by a court operating at least partially in public.