ACLU v. Clapper took a long time to get to the right answer. And that’s OK.

It’s not really a surprise that the Second Circuit Court of Appeals in NY would find that the NSA cannot legitimately use the shield of the Patriot Act to cover its continuous and pervasive data collection. Neither should it be a surprise that it took so long to get here. The courts, after all, are not the speedy actors of our system, in fact, the alacrity of the judiciary is really in third place, close behind the legislature and far behind the executive.

That being said, it seems that the pendulum, pushed wildly out of place by the events of September 11, 2001 and continually propelled by our fear of unknown technology, is starting its slow swing back toward something like a normal state where privacy and dissent are able to push against authoritative overreach. Part of this is because public opinion is slow, legislation is slow, and, as we said above, the courts. who are supposed to weigh our values against our actions, are slow.

In its own attempt to weigh those values, the Second Circuit reaches back to the Church Committee as its intellectual forebearer – because this is the last time that we had to bring secretive intelligence agencies back under control.  Now, same as then, we are not willing to trade off values. We are not willing to trade values like privacy or liberty for vague promises of security (put aside the fact that we haven’t seen evidence that the NSA’s activities enhance our security). To do otherwise would be to create a Ship of Theseus problem with our republic – keep replacing values and when does it become something wholly different from the country we though we knew and that we’ve struggled for generations to perfect?

After almost 15 years, we’ve come to the point where we can definitively say that the trade the NSA is offering is a bad trade and we reject it. And this is all to the good.