A US District Court judge William H. Pauley III ruled yesterday against the ACLU in a suit ACLU v. Clapper brought by them for a preliminary injunction to stop the NSA from collecting the telephone metadata.
In his opinion, it seems clear that he has fully embraced the post-9/11 mindset that we are under constant threat from a dangerous enemy and that we need to give the government these wide-ranging spying powers to keep us safe. This is the argument that authoritarians use to justify the government excesses that we see today.
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program-a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.
This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.
The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program. Edward Snowden’s unauthorized disclosure of Foreign Intelligence Surveillance Court (“FISC”) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.
His determination that the spying program is constitutional contradicts the earlier ruling by a different judge Richard J. Leon on December 16, 2013 in the case of Klayman v. Obama. This case, along with the earlier Leon ruling, will likely go to US Supreme Court, especially if the two Appeals Courts also arrive at different conclusions. Pauley’s verdict will be appealed to the Second Circuit Court of Appeals, while Leon’s will go the DC Circuit Court of Appeals.
A key issue will be whether the 1979 Smith v. Maryland precedent governing the collection of telephone metadata is still valid. Judge Leon said that technology had advanced so far that its guidelines were no longer operational while judge Pauley said that it must be followed until explicitly overruled by the US Supreme Court.
However, the one good thing in the latest ruling is that judge Pauley did conclude that the ACLU had standing to sue. The ACLU’s earlier suit (before the Snowden revelations) had been dismissed by the Supreme Court on the grounds that they could not prove that the government had been collecting their telephony information and thus had no standing to sue. Snowden’s revelations, and the government’s subsequent grudging acknowledgment of the existence of the programs, have removed that defense.
Lyle Denniston has more.