The heated debate over the government’s bulk collection of Americans’ telephone records echoed in the courts Friday when a federal judge in Manhattan upheld the program. The judge cited the need for the National Security Agency (NSA) program in the fight against terrorism just days after another federal judge concluded it was likely not constitutional.
The ruling by U.S. District Judge William H. Pauley III and an opposing view earlier this month by U.S. District Judge Richard Leon in Washington, D.C., set the stage for federal appeals courts to confront the delicate balance between national security and the Fourth Amendment ban on unreasonable searches.
Pauley concluded the program was a logical step after the 9/11 terrorist attacks. Pauley is a native New Yorker, whose office is in a Manhattan courthouse about a mile from the World Trade Center site.
He said the program lets the government connect fragmented and fleeting communications and “represents the government’s counter-punch” to terror networks’ use of technology to operate decentralized groups and plot international terrorist attacks remotely. “This blunt tool only works because it collects everything,” Pauley wrote.
Pauley dismissed the lawsuit from the American Civil Liberties Union, which promised to appeal to the 2nd U.S. Circuit Court of Appeals in Manhattan. Judge Leon in Washington on Dec. 17 granted a preliminary injunction for a different plaintiff, Larry Klayman of the conservative Freedom Watch. Leon blasted the NSA defense for not providing evidence that the program actually has stopped attacks.
For Pauley, though, the potential of preventing another 9/11 won out. The 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-Qaida 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-Qaida.”
Still, Pauley said such a program, if unchecked, “imperils the civil liberties of every citizen,” acknowledging the debate about the subject across the nation. But Pauley cited Supreme Court decisions ordering lower courts to respect Court precedent until the Court overrules itself, and the precedent is that the NSA program is legal.
Leon called into question that precedent—from 1979—which has led more than a dozen judges on the Foreign Intelligence Surveillance Court to approve the practice in the past. Under that ruling, citizens don’t have rights to the telephone data that phone companies keep as business records. Leon ruled, however, that today’s technological capabilities, plus the NSA’s comprehensive, “indiscriminate” methods of data collection, make that ruling obsolete.
Both cases now move to appeals courts and possibly the U.S. Supreme Court. The chances that the nation’s top court will address the case increase if the appeals courts reach conflicting opinions or if the current use of the program is declared illegal.