Federal judges issue opposite rulings on NSA surveillance

It’s chaos in the courts, as a federal judge in New York comes to exactly the opposite conclusion on NSA surveillance that a federal judge in D.C. reached last week.  Fox News reports:

The ruling on Friday came from District Judge William H. Pauley III, in the case of the ACLU vs. James Clapper, the director of national intelligence. The judge agreed with the federal government’s request to dismiss the court.

“No doubt, the bulky telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States,” the judge wrote.

But he added: “As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. Technology allowed Al Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulky telephone metadata collection program represents the Government’s counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda’s terror network.”

Last week’s finding by U.S. District Judge Richard Leon found insufficient evidence that such broad-based surveillance had ever “stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”  A White House review panel recently arrived at similar conclusions, which came as a powerful shock to the White House.  Judge Leon’s ruling would strike down these bulk monitoring efforts as unconstitutional, but he immediately put his ruling on hold, pending appeals.

Judge Leon condemned the program as the most “indiscriminate, arbitrary invasion” of privacy he could imagine, finding it in conflict with the Fourth Amendment.  But now we have a judge in New York throwing out an ACLU lawsuit because he does think the program is effective enough, or at least potentially effective enough, to be justifiable.

One of the strongest critics of the earlier negative D.C. court decision is former U.N. Ambassador John Bolton, whose Fox News appearance to discuss the ruling is summarized by NewsMax:

“When we have federal judges making national security decisions, we are on the road to doom,” Bolton said on Fox News’ “America’s Newsroom.”

“They are the last people who ought to be deciding what keeps America safe,” he added.

[…] Bolton called the debate “unbalanced,” and said the NSA had a difficult time responding to critics, given the sensitive nature of what they do. He defended the program, saying there was “nothing that these workers have done in collecting intelligence that violated any order they were given.”

Judge Pauley in New York seems to have embraced this argument.  The government is also moving to have two lawsuits in California dismissed on the grounds that litigation would expose classified details that could compromise ongoing investigations.

Judge Pauley’s decision is explicit in rejecting the arguments Judge Leon accepted, sometimes calling heads on the very same coin-tosses that came up tails for the D.C. court.  For example, Pauley feels the incredibly broad sweep of metadata collection provides a certain degree of anonymity to the citizens potentially under surveillance, while that same sense of enormous scale was one of the reasons Judge Leon found the program an unacceptable imposition on the Fourth Amendment, at least in the absence of compelling evidence that it was truly vital to national security.  Both judges considered the essential nature of the modern cell phone, with Pauley finding that it was still basically the same device covered by decades-old Supreme Court rulings on the expectation of privacy, while Leon thought telephony had changed in fundamental ways.

It’s an interesting debate, since the old rulings found that when users make a phone call, they’re voluntarily surrendering some of their privacy by entering into a temporary business arrangement with the phone company, which must compile and record certain information about both the source and destination of the phone call to complete it.  But that business arrangement is constant with a cell phone provider; the device is always turned on, it’s constantly shuffling data back and forth from the cell network, and it can be used to track the location of the phone’s owner.  Are we implicitly agreeing to all of that, and agreeing that the government can search through logs of our activities for national security purposes, when we purchase a cell phone?

There’s no way the system can work without amassing the information in question, and according to the New York decision, the owner of a phone is not really the owner of his metadata – it belongs to the provider, who compiles and maintains it.  The nature of the data hasn’t really changed over the past thirty years… there’s just a lot more of it, and the government can search it much more easily.  “Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his write to privacy in the information,” wrote Judge Pauley.

Bolton thought the NSA program could be reformed with more aggressive official oversight, plus leadership better capable of explaining the importance of broad-based surveillance to the American people.  He also suggested that some of the pushback against warrantless surveillance amounted to apprehension about ways the program could be abused, a notion that appears to have come up when the ACLU made its case in New York.  From ABC News:

In arguments before Pauley last month, an ACLU lawyer had argued that the government’s interpretation of its authority under the Patriot Act was so broad that it could justify the mass collection of financial, health and even library records of innocent Americans without their knowledge. A government lawyer had countered that counterterrorism investigators wouldn’t find most personal information useful.

Well, right up until they do, one supposes.  But they won’t notify us when they find a wider assortment of personal data useful, because the public is not cleared to know about such things.  That’s the fundamental problem with all debates about intelligence-gathering and counter-terrorism: voters cannot be given the information they need to make decisions about the programs, because the disclosure of such details would ruin the programs, making further debate redundant.  Broadening the scope of intelligence gathering to include nearly everyone’s meta-data gives everyone skin a game whose rules will never be spelled out for them.  It all boils down to trusting in procedures and oversight, or perhaps in the discretion of federal judges.