A federal judge ruled today that the NSA’s bulk telephone metadata
spying program is “lawful” and represents the nation’s “counter-punch”
to terrorism, a decision at odds with a different federal judge who two
weeks ago said it infringed the Constitution.
“The natural tension between protecting the nation and preserving
civil liberty is squarely presented by the Government’s bulk telephone
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 Housed, the question
for this Court is whether the Government’s bulky telephony metadata
program is lawful. This Court finds it is,” U.S. District Judge William
Pauley of New York ruled. (.pdf)
Pauley, a President Bill Clinton appointee, said the spying was a
reasonable, “vital tool” to combat terrorism and is less intrusive than
the data people “voluntarily surrender” to “trans-national
corporations.”
The decision comes as President Barack Obama was mulling overhauling the program
to satisfy public concerns over the stockpiling of American’s calling
records, a strategy designed to combat terrorism. What’s more, the
ruling contradicts another federal judge, who ruled earlier this month
that America’s founding fathers would be “aghast”
at the program, which has been authorized by Congress and by a secret
court tribunal known as the Foreign Intelligence Surveillance Court.
The suit (.pdf)
was brought by the American Civil Liberties Union in June, days after
the Guardian published a secret FISC opinion authorizing the bulk
collection, and among other things claimed the program breached
Americans’ rights to be free from warrantless searches and seizures. The
civil rights group labeled the spying as “one of the largest surveillance efforts ever launched by a democratic government.”
The issue is almost certainly going to reach the Supreme Court. But
it isn’t likely to get there for a year or more as it meanders through
the legal system. So unless Obama alters course, the collection program
is likely to continue unabated.
Justice Department spokesman Peter Carr said the government was “pleased with the decision.”
The ACLU said it would appeal to the 2nd U.S. Circuit Court of Appeals in New York.
“We are extremely disappointed with this decision, which
misinterprets the relevant statutes, understates the privacy
implications of the government’s surveillance and misapplies a narrow
and outdated precedent to read away core constitutional protections,”
said Jameel Jaffer, the ACLU’s deputy legal director.
Judge Pauley refused to block the program and dismissed the case at the government’s request.
Two weeks ago, when a different federal judge ruled against the bulk collection program, many suggested it was time to grant amnesty to Snowden
for exposing spying. U.S. District Judge Richard Leon in Washington,
D.C., found that “such a program infringes on ‘that degree of privacy’
that the Founders enshrined in the Fourth Amendment. Indeed, I have
little doubt that the author of our Constitution, James Madison, who
cautioned us to be aware ‘the abridgment of freedom of the people by
gradual and silent encroachments by those in power,’ would be aghast.”
Leon stayed enforcement of his ruling, pending appeal.
Since at least 2006, the secret Foreign Intelligence Surveillance
Court has been assigning orders, at the NSA’s request, demanding the
nation’s telecom providers hand over bulk telephone metadata without
probable-cause warrants. That data includes phone numbers of both
parties involved in all calls, the international mobile subscriber
identity number for mobile callers, calling card numbers used in the
call, and the time and duration of the calls.
The NSA’s telephony database is said to have more than 1 trillion
records. Judge Pauley said the program was necessary to protect America.
No doubt, the bulk telephony metadata collection program
vacuums up information about virtually every telephone call to, from, or
within the United States. That is by design, as it allows the NSA to
detect relationships so attenuated and ephemeral they would otherwise
escape notice. as the September 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
bulk telephony metadata collection program represents the Government’s
counter-punch: connecting fragmented and fleeting communications to
re-construct and eliminate al-Qaeda’s terror network.
The judge said evidence showed the program disrupted a plot to bomb the New York subway and the New York Stock Exchange
and a Danish newspaper, among other attacks. Judge Leon, however, found
two weeks ago that the program did not help the government battle
terrorism.
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