January 9, 2014

The Constitutionality of the NSA Spying Program – Great Minds Do Not Think Alike

HackersBy Gordon Schnell

The battle rages on over the constitutionality of the NSA’s bulk collection of phone data disclosed by Edward Snowden.  It was only a few weeks ago that DC District Court Judge Richard Leon found in Klayman v. Obama a “substantial likelihood” that the challenged phone surveillance program violates the Fourth Amendment.  For Judge Leon, it was not even a close call.  He could not imagine a more “indiscriminate,” “arbitrary” and “almost-Orwellian” invasion of our privacy.  So horrific to him there was “little doubt” in his mind that James Madison, author of our Constitution, “would be aghast.”  See The Redemption of Edward Snowden …

In a decision rendered only eleven days later, however, NY District Court Judge William Pauley III came to the exact opposite conclusion.  In ACLU v. Clapper, Judge Pauley found the secret spying program so obviously constitutional he dismissed the ACLU’s challenge on the pleadings as a matter of law, without even allowing the case to proceed to factual discovery.  The judge went one step further.  In defending the legality of the program, he raised the specter of September 11 and warned of the “horrific” consequences that could follow if the government was forced to dismantle the NSA’s program.

Here are the three principal areas where these two highly respected judges see things very differently.

First, they disagree on the application of the Supreme Court’s 1979 landmark warrantless search decision, Smith v. Maryland.  That case found no “legitimate expectation of privacy” over dialed telephone numbers because they are voluntarily provided to the phone companies when dialing.  Judge Leon rejected the decision as “of little value” because it predates the use of cell phones and therefore does not account for the vastly different relationship people have with their phones today.  He also was swayed by how much less intrusive the challenged surveillance program was in that case—a pen register at the home of a suspected criminal which recorded the numbers he dialed—compared to the NSA’s all-encompassing collection of an entire country’s worth of phone information.

Judge Pauley swept aside as irrelevant these factual and temporal differences.  To him, the ubiquity of cell phones and their dramatically increased versatility over traditional phones does not undermine the application of Smith to the NSA program.  That is because “what metadata is has not changed over time.”  It involves the same types of “relatively limited” information; namely, the “phone numbers dialed, date, time, and the like.”  In Judge Pauley’s view, the Supreme Court was clear in Smith that, regardless of the surrounding circumstances and context, or the massive scope of its collection, there can be no privacy expectation for this kind of telephony metadata.

Second, the two judges disagree on how invasive the NSA program really is.  As Judge Leon sees it, the metadata collected under the NSA program provides the government with “a wealth of detail about familial, political, professional, religious, and sexual associations, . . . an entire mosaic — a vibrant and constantly updating picture of the person’s life.”  He is particularly concerned about the government’s ability to collect this treasure trove of personal information without “any basis whatsoever to suspect [] wrongdoing” or “any case-by-case judicial approval.”

Judge Pauley, on the other hand, has no such concern.  He pointed to several built-in controls within the NSA program that severely limit the government’s ability to access or even query the collected data.  According to Judge Pauley, the government only sees that telephone number A called telephone number B; it does not know to whom those numbers belong.  Furthermore, the judge highlighted the government’s “crystal clear” repudiation of the notion that it conducts the type of data mining that would lead to the privacy “parade of horribles” that Judge Leon and others warn against.

Third, and perhaps the core disagreement underlying their diverging rulings, is how each judge views the effectiveness of the surveillance program.  Judge Leon found that the government failed to demonstrate that the program actually served the significant public interest it put forward of rapidly identifying terrorists in time-sensitive investigations.  There was an “utter lack of evidence that a terrorist attack has been prevented because searching the NSA database was faster than other investigative tactics.”  As to the government’s public assertions that the NSA surveillance program has prevented numerous terrorist attacks, the judge said that “no proof of that has been put before me.”

Judge Pauley could not disagree more on this issue, finding the program’s value “cannot be seriously disputed.”  He set forth a litany of specific examples and government testimony which in his mind offered “ample justification” of the program’s importance and worth.  But it was his repeated reference to the horror of September 11 which most clearly lays bare the lens through which Judge Pauley rendered his decision.  As he sees it, the NSA program is the government’s “counter-punch” or “counter-measure” to these terrorist attacks.  He went so far as to suggest—on the very first page of his decision—that had the challenged NSA program been in place at the time, these attacks might have been avoided altogether.

So how could these two great minds be so far apart on this fundamental constitutional question?  It really comes down to a balancing test between, as Judge Pauley put it, “protecting the nation and preserving civil liberty.”  To bring this point home, Judge Pauley ended his decision with the particularly apt words of former Supreme Court Justice Robert Jackson:

A court’s solemn duty is “to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression.”

When it comes to the legality of the NSA spying program, Judges Leon and Pauley obviously disagree on how best to uphold this “solemn duty.”  Ultimately, it will be for the Supreme Court to decide.

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One Response to “The Constitutionality of the NSA Spying Program – Great Minds Do Not Think Alike

  1. Michael Hayden: “This is not an innocent who went to work under one set of expectations and then was just shocked and appalled by what he found at work and was driven to some sort of action. This is somebody who sought the job he had in order to scrape information off of NSA’s systems. I’m fond of saying he was a hunter, not a gatherer. He went there with a plan and malice aforethought.”

    The insistence that Snowden would have done the right thing IF ONLY appropriate whistleblower protection was in place flies in the face of how he operated. In practice what this does is lump real whistleblowers into the same unjustifiable category as this wanton lawbreaker, making it all the more difficult to successfully make the case for greater whistleblower protection. Time to wake up and smell the coffee …