On December 27, just ten days after D.D.C.’s Judge Leon awarded a preliminary injunction against the NSA’s telephone metadata collection in Klayman v. Obama, a different federal judge ruled in the NSA’s favor. This gives us conflicting opinions in different federal districts and brings the issue one step closer to its likely endgame at the U.S. Supreme Court.
In ACLU v. Holder, Judge William H. Pauley III of the Southern District of New York denied the ACLU’s motion for preliminary injunction and dismissed the ACLU’s lawsuit. The facts in ACLU v. Holder are about the same as in Klayman v. Obama, so how did Pauley come to the opposite result? Clearly, the two judges see this issue differently, and aren’t afraid to make their opinions known – both Leon’s 68-page opinion and Pauley’s 51-pager read like pieces of advocacy, and there’s no doubt each judge, in writing his opinion, considered its effect on the appellate courts that would review it.
I blogged last week about the Leon opinion. So what does Pauley have to say? No Beatles references here – Pauley is all about the Stars and Stripes. “The September 11 terrorist attacks” are his first words, and Pauley goes on to suggest that 9/11 might have been prevented by a collection program like the NSA’s. Writing in a courthouse less than a mile from Ground Zero, Pauley might be tempted to call checkmate right then and there, but he goes on to flesh out his opinion with legal authority for the NSA metadata collection under the Patriot Act, as well as the First and Fourth Amendments.
You can read the full opinion here.
“A Bold Jujitsu”
While Judge Pauley’s opinion isn’t as florid as Judge Leon’s, Pauley does get philosophical, even poetic, at times. In his opening paragraph, he states:
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.
Judge Pauley’s opening argument is visceral. He quickly switches from the third person – “Americans” – to the first – “us.” And the way “we” could have protected ourselves, according to Pauley, is through a program like the NSA’s. With this opener, Pauley shows a little jujitsu of his own. This is no longer a case about citizens holding their government responsible for covert domestic surveillance. It is a case about “us” (Americans) versus “it” (al-Qaeda, with its spidery “filaments”). A bold move, Pauley – certain to win sympathy in Manhattan, and perhaps in the Second Circuit as well. But what does Pauley mean by “a seventh-century milieu?” Is this a reference to historical Muslim conquests?
Secret Means and Methods
On pp. 3-9, Pauley describes FISA and the Patriot Act. Even in this “Background” section, the judge argues the merits of clandestine surveillance: ” . . . in matters of national security, the Government must be able to keep its means and methods secret from its enemies.”
I briefly cover the Fourth Amendment and Constitutional privacy rights at the beginning of my business law class, and this is one of the questions I put to the students – how should a government balance national security with its citizens’ privacy? Are national security concerns paramount in time of war? Is the “War on Terror” a war in this regard?
Judge Pauley wades briefly into this debate at pages 8-9: “In recognition of the broad intelligence gathering capability Congress granted to the Executive Branch, section 215 included a sunset provision terminating that authority at the end of 2005. But the war on terror did not end. Congress has renewed section 215 seven times.” Why include the phrase “But the war on terror did not end?” The comment seems out of place and almost sarcastic – for who in 2013 America believes the war on terror has a foreseeable end, even if al-Qaeda is annihilated? However, from the context, I think that Pauley means for his comment to be taken at face value, and the judge does believe that a surveillance program designed to be temporary reasonably could be extended for an indefinite period until the war on terror “ends.”
“Those Issues Were Resolved”
After describing the FISC oversight and the rigorous protocols required of the NSA surveillance program, Pauley addresses concerns that the NSA, in some cases, did not follow protocol. Pauley dismisses these concerns quickly, quoting an FISC judge’s partially-declassified order: “Through oversight by this Court over a period of months, those issues were resolved.” Look for this to be a common theme in judicial opinions supporting the constitutionality of the NSA program. No judge wants to be the one to dismantle the NSA program and risk a terrorist attack that might have been prevented. Even Judge Leon passed the buck by staying his injunction while Klayman went up on appeal. The Obama administration has already initiated an overhaul of NSA collection methods and their oversight, with the possible addition of a “citizens advocate” on the FISA court. It might be tempting to find that such developments in the executive branch moot claims against the NSA’s programs, programs that may change significantly by the time the case reaches the Supreme Court. I assume that’s what Judge Pauley is indicating in his cryptic remarks near the end of his opinion, on p. 51:
As FISA has evolved and Congress has loosened its individual suspicion requirements, the FISC has been tasked with delineating the limits of the Government’s surveillance power, issuing secret decision [sic] without the benefit of the adversarial process. Its ex parte procedures are necessary to retain secrecy but are not ideal for interpreting statutes. This case shows how FISC decisions may affect every American — and perhaps, their interests should have a voice in the FISC.
It’s a strange comment from a judge that uses the rest of his opinion to defend the FISC’s secret decisions in the name of national security, and I think it is telling of how this case will end. No court wants to definitively label the NSA program unconstitutional. It’s much more palatable to find that the primary concerns with such programs have been resolved through actions of the Executive and Legislative branches.
Judge Pauley addresses the ACLU’s statutory claims first and finds that civil actions by NSA “targets” such as the ACLU are explicitly prohibited by FISA and the Patriot Act. What’s interesting is that, even after claiming Plaintiffs cannot bring a statutory cause of action, Pauley goes on to address, and dismiss, the merits of the Plaintiffs’ statutory claims. He takes over ten pages to do so. As these arguments are not necessary to support his ruling, one can assume that the judge is again taking on the role as advocate and “pleading in the alternative” to the Second Circuit, in case it doesn’t agree that the statutory cause of action is barred.
Liberty and Security
I may write more later on Pauley’s constitutional analysis. In short, he finds Smith to be binding precedent and therefore finds that the metadata collection is not a Fourth Amendment search. I mentioned in my earlier blog post that I found Leon’s analysis of Smith suspect, and I think Pauley has the better argument here. Pauley makes the sound point that the type of information that the NSA collects from telecommunications providers (metadata) is the same as the type of information that was collected by the Smith “pen register.”
As far as philosophical questions of privacy vs. security, Pauley has a strong opinion: “It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.” (p. 47, quoting Haig v. Agee). He reiterates this point in his conclusion, where he once again takes us back to September 11, quoting the 9/11 Commission Report: “The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil.” This is a fair point, but it’s not the end of the debate. Coming back to Judge Leon’s fears of our “almost-Orwellian” national security apparatus, we also have to ask what made Orwell’s 1984 a dystopia, and whether, in strengthening our national security, we are giving up an essential part of our national character. It’s a highly nuanced question that will be on the mind of the appellate judges, and perhaps the Supreme Court justices, who will consider this issue on appeal.
- Judge Rules NSA Mass Phone Data Collection Is Legal (theguardian.com)