Defense

Analysis: Is NSA Surveillance Constitutional?

This is why we have a justice system in which lower-court conflicts rise up for resolution by a single, supreme court. This is why the law can seem, at times, to be a "same planet, different world" proposition to those who don't follow it closely (and even to those of us who do).

We have, in the span of just 10 days, seen two diametrically opposed judicial rulings about the legitimacy of the government's controversial bulk metadata collection program, the existence of which we learned about just this past year thanks to Edward Snowden. Although the two opinions apply the same law and essentially the same facts, they are so contradictory they cannot be reconciled. One judge will be proven right and the other proven wrong, although I suspect it may be 2015  before the final tally is recorded.

Last week, a federal trial judge in Washington boldly declared the NSA's bulk metadata collection program to be "likely unconstitutional," as applied to individual citizens whose phone records were collected and stored. Here is the link to that ruling, authored by U.S. District Judge Richard Leon, a nominee of President George W. Bush. It was a Republican appointee, the record will reflect, who first challenged the legality of the sprawling surveillance operation.

On Friday, a federal trial judge in New York boldly declared that very same surveillance program is constitutional as applied to the ACLU, the phone records of which also were collected and stored. Here is the link to the ruling, authored by U.S. District Judge William Pauley, a nominee of President Bill Clinton. It was a Democratic appointee, the record will also reflect, who first endorsed the legality of this once-secret, mass data collection program

Judge Leon last week issued a temporary injunction halting the program-- but then stayed the application of his ruling so that the Obama Administration could appeal it to the D.C. Circuit Court of Appeals. Judge Pauley today denied a request for an injunction by the ACLU and granted the Obama Administration's motion to dismiss the case. An appeal to the Second Circuit surely will follow. The first judge concluded the government would lose on the merits. The second judge concluded that the government had won on the merits.

Judge Pauley ruled that the NSA's collection efforts do not violate the Fourth Amendment, citing its interpretation by the Supreme Court in a 1979 case styled Smith v. Maryland. But Judge Leon ruled that the surveillance programdoes likely violate the Fourth Amendment's protection against unreasonable searches, and he rejected the Smith case as technologically outdated. One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith.

Judge Leon last week ruled that Congress did not intend to prevent plaintiffs whose records were seized and stored from coming to federal court to challenge the validity of the NSA's surveillance program. Judge Pauley Friday ruled that Congress indeed intended to preclude that very thing—allowing the people or companies whose records were collected to have access to federal courts while limiting the court access of the telephone companies that provided the information.

Judge Leon last week questioned the effectiveness of the government's program, asserting that federal officials did not "cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack." Judge Pauley asserted the exact opposite: "The effectiveness of bulk telephony metadata collection cannot be seriously disputed."

Judge Leon peppered his lengthy opinion with expressions of great skepticism for the government's justifications. His lack of deference toward the executive branch and its intelligence operations was palpable. "I cannot imagine a more 'indiscriminate' and 'arbitrary invasion' than this systematic and high-tech collection and retention of personal data," he wrote.

Judge Pauley peppered his lengthy opinion with expressions of great respect for the government's surveillance efforts. His respect for the nation's intelligence operations was palpable. “While there have been unintentional violations of guidelines," he wrote, "those appear to stem from human error and the incredibly complex computer programs that support this vital tool.”

Although the two rulings involve different plaintiffs, Judge Pauley's opinion reads as a pointed response to Judge Leon's ruling of 10 days earlier. In fact, I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws.

And that, of course, says a great deal about the nature of the NSA's program itself and its symbolic role in the conflict America faces as it teeters back and forth between privacy and security. Taken together, these two manifestos represent the best arguments either side so far has been able to muster. If you trust the government, Judge Pauley's the guy for you. If you don't, Judge Leon makes more sense.

That two judges would hold such contrasting worldviews is either alarming (if you believe the law can be evenly applied) or comforting (if you believe that each individual judge ought to be free to express his conscience). In any event, taken together, the two opinions say a lot about nature of legal analysis. The judge who gets overturned on appeal here won't necessarily be wrong—he'll just not have the votes on appeal supporting his particular view of the law and the facts. In the end, you see, there is no central truth in these great constitutional cases that rest at the core of government authority; there is just the exercise of judicial power.

 Where does that leave the rest of us? The program still rolls on—unencumbered by the statutory and constitutional confusion that now reigns over it. We'll spend the bulk of 2014 watching the fight over it play out in at least two separate federal appeals courts. And then, unless there is a form of unanimity between and among those appeals courts that clearly is lacking between and among Judges Leon and Pauley, we'll see sometime in 2015 the first big terror law case in front of the Supreme Court since 2008.

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// September 19
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