Presumably at some stage, you think there is some trustworthy third party with the discretion to decide whether the Exec will get in trouble for breaking the law or not. My puzzlement is why you wait so long for their involvement. Rather than assessing the dubious action after the fact, why not require them to secure clearance beforehand?

First, you aren’t going to be able to offer a definition of exigent circumstance that will cover all cases without risking substantial overbreath. I mean you want the government to go ahead and violate the privacy standards when they are certain that a nuclear weapon is involved and millions will die. You don’t want them using it when they are certain that a mob hit may go down and one person will die. Short of writing out a massive equation weighing the harms of various types of deaths, suffering and economic disruption (assigning a dollar value to a life won’t be emotional at all) you won’t be able to write out a specific standard because the entire point is that it’s an unanticipated situation. Thus you would have to use something like, ’substantial probability of massive death or suffering’ which in itself would be dangerously open to lenient interpretations.

Second, even going to a fairly vague standard you won’t be able to write a legal standard capturing the sort of behavior we expect. Ultimately what we want is some sort of reasonable trade off between the badness of breaking the law and violating privacy and the potential to avert harm. That means we need a judgement of whether this action is a good idea and a legal standard simply can’t capture that notion. If you tried to make a judge responsable for deciding if it was a good idea to approve a special exception the supreme court would overturn the law as a violation of separation of powers. Just as congress couldn’t grant the president the legislative power of the line item veto they can’t delegate executive/legislative power to judges.

Third, this proposal offers no real advantages. Judges are just people too and are also appointed by presidents. The reason judicial opinions seem more principled and trustworthy is because they are trying to perform an interpretive task not an executive one. Not only would judges be no better about making the choice as to whether something is a good idea the proposal risks further politizing the judiciary and imperiling our whole system. This is also another reason why you don’t want the judges doing something downright illegal. Also, we don’t want to let the executive shop around for the judge who is going to be most likely to approve something but nor do we want to select a particular judge and require everything to go through him (what if he dies, is sick etc… the judiciary isn’t set up to handle emergency succession like the executive).

Third, if the judge is understood not to be on the hook (i.e. go to jail) if he overrides the law and lets them examine anyway then it offers substantially less protection than my plan. The key point here is that any standard that doesn’t simply make it a crime to override the legislation won’t really have any force. You need a system where it is flat out illegal for them to do something to be a sufficent barrier so that the only way they will get off the hook is by an active decision of congress to forgive them. The best we can do is create both massive civil penalties against them and criminal ones. But once you have someone on the line for criminal penalties they can’t make that deciscion on partial evidence. The judge can’t know if the executive cherry picked the evidence for him. The AG will know. Besides, it would be harder to justify pardoning your own AG for this decision than it would to pardon the judge since people might be sympathetic to him will seeing the AG as a coconspirator.

Finally, all that really differs about what i think should be done and what you think should be done is that I think the law should let the AG change things so that he is getting personally sued (and face jail time) rather than the phone companies. How can this possibly be worse?

Or to put it differently, the AG can already go ahead and break the law to get whatever he wants done so no additional risk is taken by letting him personally absorb the phone companies liability.