December 27, 2013
A federal judge on the United States District Court for the Southern District of New York has ruled in a lawsuit filed by the American Civil Liberties Union that the National Security Agency’s bulk data collection of Americans’ phone records is "lawful" and not unconstitutional.
The ruling comes just over a week after another federal judge ruled in a similar lawsuit that the surveillance program violates Americans’ privacy rights and James Madison, one of America’s founding fathers, would be "aghast" if he was alive to see this program.
Judge William H. Pauley, appointed by President Bill Clinton, did find that the ACLU had standing. The ACLU had not had been granted standing in its case against dragnet warrantless NSA surveillance before the Supreme Court and the lawsuit was dismissed. However, Pauley found that Congress had precluded challenges to the provision of the PATRIOT Act known as section 215, which the government has claimed grants the power to indiscriminately collect Americans’ phone records from telecommunications companies. He also did not find the constitutional claims argued by the ACLU had any merit.
"Allowing any challenge to a section 215 order by anyone other than a recipient would undermine the government’s vital interest in keeping the details of its metadata collection program secret," he wrote in his decision. "It would also—because of the scope of the program—allow virtually any telephone subscriber to challenge a section 215 order." Congress "intended to preclude statutory causes of action."
Pauley found that "tangible items"—which the NSA believes it is permitted to collect under section 215—are "relevant" if they "bear on or could reasonably lead to other matter that could bear on the investigation." (It would be difficult to conjure a more broad definition of "relevant," though one knows there are government lawyers in the Justice Department whose job it is to further expand the limits traditionally imposed by the word "relevant.")
As for the constitutional claims, the judge determined, "Without additional legal justification—subject to rigorous minimization procedures—the NSA cannot even query the telephone metadata database."
When the NSA makes a query, "it only learns the telephony metadata of the telephone numbers within three 'hops’ of the 'seed.’" Without resorting to any other techniques the government "does not know who any of the telephone numbers belong to." It does not know who subscribes to telephone numbers A or B.
Furthermore, the government "repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles." The precedent of Smith v. Maryland, from over three decades ago, still holds.
"The fact that there are more calls placed doesn’t undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata," Pauley found.
As far as the First Amendment, Pauley wrote that "any alleged chilling effect here arises from the ACLU’s speculative fear that the government will review telephony metadata related to the ACLU’s telephone calls."
Even if the ACLU could prove it had statutory or constitutional claims with merit, the judge decided this would "cause increased risk to national security and the safety of the American public."
The judge accepted everything the government said about the efficacy and value of the bulk data collection program. It "cannot be seriously disputed," the judge wrote. He cited the cases of Najibullah Zazi, Khalid Oazzani, and David Headley. He also believed the NSA claim that before the 9/11 attacks the NSA could not "connect the dots" to prevent attacks.
But, perhaps, what most stood out was what Pauley wrote about how the ACLU had found out about the government’s collection of telephony metadata.
The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone number but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’ intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215′s secrecy protocol confining challenges to the FISC [FISA Court], while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.
It is the kind of argument that Alan Dershowitz or Jeffrey Toobin will likely be heard championing in the next weeks as they condemn journalist Glenn Greenwald for continuing to stand up for his source.
Essentially, if a journalist publishes unauthorized disclosures or leaks in a news story and the lawsuit would fail without that information, the judge is suggesting the lawsuit should probably be dismissed. The secrecy is more important than what was revealed and so too is the criminality of the leaker or whistleblower, the fact that he or she had to violate a law in order to release key information that was in the public interest.
Justin Elliott and Theodoric Meyer clearly demonstrated in an article for ProPublica, which was cited in the decision that found this same program "likely unconstitutional" last week, that claims of thwarted terrorist attacks by the NSA lack evidence:
- The case of Najibullah Zazi, who in 2009 plotted to bomb the New York subway system. The NSA has said that an email it intercepted to an account of a known Al Qaeda figure in Pakistan allowed authorities to identify and ultimately capture Zazi. But an Associated Press examination of the case concluded that, again, the NSA’s account of the case did not show the need for the new warrantless powers at issue in the current debate. "Even before the surveillance laws of 2007 and 2008, the FBI had the authority to — and did, regularly — monitor email accounts linked to terrorists," the AP reported.
- A case involving David Coleman Headley, the Chicago man who helped plan the 2008 Mumbai terrorist attack. Intelligence officials have said that NSA surveillance helped thwart a subsequent plot involving Headley to attack a Danish newspaper. AProPublica examination of that episode concluded that it was a tip from British intelligence, rather than NSA surveillance, that led authorities to Headley.
- A case involving a purported plot to attack the New York Stock Exchange. This convoluted episode involves three Americans, including Khalid Ouazzani of Kansas City, Mo., who pleaded guilty in 2010 to bank fraud, money laundering, and conspiracy to provide material support to Al Qaeda. An FBI official said in June that NSA surveillance helped in the case "to detect a nascent plotting to bomb the New York Stock Exchange." But no one has been charged with crimes related to that or any other planned attack. (Ouazzani was sentenced to 14 years last month.)…
The truth is that no imminent terrorist attacks have been stopped by the NSA’s bulk data collection program. It could potentially stop terrorist attacks and that is what the NSA is fighting to preserve—a program that has not made a demonstrable contribution to national security yet indiscriminately collects the personal data of Americans.
Pauley also seems to have completely swallowed all of the bogus claims the NSA and its defenders, like Senator Dianne Feinstein and Rep. Mike Rogers, have made to try and tamp down outrage at what Snowden revealed.
As NSA whistleblower Bill Binney told me recently, "The phone number is your identity. Just do a reverse look-up and you get everything you’d want to know—your address, your name and everything." You get "people associated with you. You get all this information."
The NSA gets the date of the call, the duration and the location where the call was made. "That means they can know your own social network, all your day to day activities and track all your movements where you go. That’s considerable knowledge about an individual’s life."
What is clear from Pauley’s ruling is that it is more concerned with shielding the national security state from challenge than it is in properly examining critical questions that stem from protecting privacy rights.
For example, this paragraph from the decision:
…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 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 bulk telephony metadata collection program represents the government’s counter-punch: connecting fragmented and fleeting communications to re-constructs and eliminate al Qaeda’s terror network…
Such cheerleading about how a program is a "counter-punch" is what one would expect from someone who has allowed themselves to become a devout believer in the national security state. It puts government interests in continuing surveillance ahead of the privacy interests of Americans. And it helps give the government even greater immunity from challenges brought by citizens.