In the last couple weeks, two separate judges have ruled on the NSA’s cell phone data mining operation. One of them, a Bush appointee, said the program is clearly unconstitutional; the other, a Clinton nominee, said the program is clearly constitutional. Andrew Cohen notes that the two rulings are almost completely opposite one another in every way.
Judge Pauley ruled that the NSA’s collection efforts do not violate the Fourth Amendment, citing its interpretation by the Supreme Court in a 1979 case styled Smith v. Maryland. But Judge Leon ruled that the surveillance program does likely violate the Fourth Amendment’s protection against unreasonable searches, and he rejected the Smith case as technologically outdated. One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith.
Judge Leon last week ruled that Congress did not intend to prevent plaintiffs whose records were seized and stored from coming to federal court to challenge the validity of the NSA’s surveillance program. Judge Pauley Friday ruled that Congress indeed intended to preclude that very thing—allowing the people or companies whose records were collected to have access to federal courts while limiting the court access of the telephone companies that provided the information.
Judge Leon last week questioned the effectiveness of the government’s program, asserting that federal officials did not “cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack.” Judge Pauley asserted the exact opposite: “The effectiveness of bulk telephony metadata collection cannot be seriously disputed.”
Judge Leon peppered his lengthy opinion with expressions of great skepticism for the government’s justifications. His lack of deference toward the executive branch and its intelligence operations was palpable. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data,” he wrote.
Judge Pauley peppered his lengthy opinion with expressions of great respect for the government’s surveillance efforts. His respect for the nation’s intelligence operations was palpable. “While there have been unintentional violations of guidelines,” he wrote, “those appear to stem from human error and the incredibly complex computer programs that support this vital tool.”
Although the two rulings involve different plaintiffs, Judge Pauley’s opinion reads as a pointed response to Judge Leon’s ruling of 10 days earlier. In fact, I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws.
Now they will work their way through their respective appeals courts and likely up to the Supreme Court in 2015, which will be the first time the court has heard a major case involving national security, executive power and the 4th Amendment since 2008. The Obama administration will be on the wrong side, as it has in every single such case since taking office.