One could argue that the ruling by a Federal Judge that the NSA spying program is legal was not only a horrible ruling, but based on his personal view and not grounded at all in law.
The headlines on Friday, December 27th, 2013 came across loud and clear. “Federal Judge Rules NSA Spying is Legal”. This ruling of course, was sudden and bit surprising to many people because it comes less than two weeks after another U.S. Circuit Court Judge ruled the exact opposite, saying that the NSA’s bulk collection of phone and email records is illegal, and likely a violation of the 4th Amendment protection against unlawful search and seizure.
So where did this latest ruling come from? In this case, it was U.S. District Court Judge William Pauley who dismissed an ACLU lawsuit claiming that the NSA program was violation of the 4th Amendment.
“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,” Pauley said.
What is most interesting about his ruling is how little, if at all, Judge Pauley actually explained the legal justification for his ruling. Rather, he stated over and over why the September 11, 2001 terror attacks provide justification for the program.
“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,” he said.
The Judge went on to claim that because of the “safeguards” in place for all this information gathered by the NSA, there is no reason to suspect or think that the government might abuse that information. In response to the ACLU claim that the government, through this kind of data collection, would know whether or not someone had visited a sex hotline, had contemplated suicide, had struggled with gambling or drug addiction or had supported political candidates or causes, Judge Pauley insisted that the Government will not mis-use that kind of data.
What is most fascinating about this ruling is that Judge Pauley does not give a legal or Constitutional reason as to why the NSA has the right to this information or why the private information can be gathered and queried by federal agents. He simply states that the government won’t misuse it and therefore, Americans shouldn’t be worried about it.
Contrast this ruling with the one by Judge Richard Leon which we told you about just under two weeks ago. In this case, District Court Judge Leon cited legal reasons, not emotional ones, to strike down the NSA program stating,
“No Court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion.”
Judge Leon went on to say “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”
Perhaps the most interesting part of the latest ruling by Judge Pauley was when the Judge took on Edward Snowden, stating that the only reason the ACLU has filed this lawsuit in the first place was because of Snowden’s disclosure of information. Had Snowden never disclosed the program, the ACLU and the rest of America wouldn’t have known the program was taking place. Calling the Snowden revelations “Another level of absurdity in this case”.
“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’s intent. To hold otherwise would spawn mischief,” he wrote.
In a nutshell, Judge Pauley’s ruling is simple. The government needs no legal permission to carry out their programs, they simply need a reason that trumps the rights of the individual. Like the government lawyers, Pauley seems to believe that reason is the September 11 terror attacks. Judge Pauley also chooses to never address the individual rights of the American citizen protected by the 4th Amendment of the U.S. Constitution and instead makes a ruling based in the old adage “What you don’t know won’t hurt you”.