On November 9, 2015, Judge Richard Leon issued a preliminary injunction against the NSA bulk data collection program. On November 10, in a per curiam Order, the D.C. Circuit stayed the preliminary injunction pending the government’s appeal. Last Friday, November 20, the Circuit denied the plaintiffs’ emergency request for rehearing of the stay order en banc. In a somewhat unusual move, Circuit Judge Brett Kavanaugh wrote a concurrence to the Order denying the request for hearing en banc. Judge Kavanaugh states in the concurrence that “the Government’s metadata collection program is entirely consistent with the Fourth Amendment.” Concurrence at 1. Judge Kavanaugh states that the bulk data collection program satisfies the “special needs” exception under the Fourth Amendment because it “serves a critically important special need — preventing terrorist attacks on the United States.” Id. at 2. According to Judge Kavanaugh, “that critical national security need outweighs the impact on privacy occasioned by the program.” Id.
In my view, Judge Kavanaugh’s concurrence is troubling. An emergency petition for en banc review is an extraordinary request that can be denied for many reasons without opining on the merits. It is difficult to see how Judge Kavanaugh could reach such an easy conclusion about the NSA program in the context of an emergency en banc petition, without full briefing and argument on the merits. Unfortunately, it seems that the threat of terrorist attacks will remain with us in the foreseeable future. While the threat is deadly serious, the ordinary rule of law cannot remain suspended in a perpetual state of exception, or else it is a rule of power and not of law.