The legal battles surrounding the constitutionality of the Section 215 bulk phone records collection are now suddenly at odds with each other. A step forward (Judge Leon's decision earlier this month finding the collection to be "likely unconstitutional
") has now been matched by a step backward. Judge Pauley of the Southern District of NY has found the Section 215 program to be legal and has dismissed the ACLU's lawsuit against the government. (The ACLU is planning to appeal
Pauley refers to the same case (Smith v. Maryland
) that Judge Leon referred to in his decision, but comes to very different conclusions. Pauley's ruling is predicated on the very expansive reading of the Third Party Doctrine security, intelligence and law enforcement agencies have relied on for years. Information given voluntarily to third parties is not protected by the Fourth Amendment. This reading has allowed the NSA to collect every phone record generated in the US for the past half-decade uninterrupted and for a majority of the last 12 years.
For many people, the reality of the Third Party Doctrine didn't hit home until the Snowden leaks began. It wasn't so surprising that this sort of data harvesting was happening. Whistleblowers had been warning for years that the government was collecting data and content on a massive, worldwide scale. The real shock was that, for the most part, everything was completely legal
Judge Pauley's decision reaffirms this status quo. The opening paragraph sets the tone and lets the reader know exactly what conclusion Pauley will arrive at 54 pages later. The opening paragraph could have been ghostwritten by the ODNI.
The September 11th terrorist 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-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.
Prior to the September 11th attacks, the National Security Agency intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego,California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Intelligence ("FBI") of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.
The footnote refers to the 9/11 Commission Report whose findings directly contradict this narrative. The problem was not that the information wasn't there. It was that it wasn't shared
. It was the fact that the CIA lost al-Mihdhar, but rather than issue an alert or place him on a watch list, it chose to do nothing. Many things went wrong, but not having
the intel wasn't the issue.
While Pauley does acknowledge that unchecked surveillance can result in diminished civil liberties, he restricts his arguments to the legality of the program in question. Whether or not the 215 program should continue should be turned over to the "other two coordinate branches" in Pauley's opinion, which makes his dismissal of the ACLU's injunction request partially a punt.
Pauley acknowledges Snowden's contribution to the national discussion on security and privacy (via "unauthorized disclosures") in the early pages of his decision but then proceeds to deliver the government's official depiction of this program as if the leaks, and everything that followed, never happened
Pauley delivers the following assertions with apparent sincerity, ignoring evidence to the contrary.
Bulk telephony metadata collection under FISA is subject to extensive oversight by all three branches of government. It is monitored by the Department of Justice, the intelligence Community, the FISC, and Congress.
Oversight has been spotty at best, depending on who's controlling the dissemination of relevant information. Rep. Mike Rogers' tenure as the head of the House Intelligence Committee has been marked by deliberate and repeated obfuscation.
Since the initiation of the program, a number of compliance and implementation issues were discovered and self-reported by the Government to the FISC and Congress…[T]he NSA addressed these problems...
Except that FISC judge Reggie Walton found the abuse so pervasive and the NSA's interpretation of its own programs so misleading that he posited the 215 program had never
adhered the court-imposed limitations. Further, he noted that proposed remedies were deployed haphazardly with a minimum of followup. This resulted in the program nearly being completely shut down in 2009. But Pauley presents the NSA's self-reporting as evidence of its trustworthiness -- and as more "evidence" that the oversight works.
Pauley buys everything the NSA claims about its program, from metadata not being a useful identifier (obviously untrue -- anyone with an internet connection can find out a great deal about someone or someones with little more than a handful of phone numbers) to a large portion of the database being untouched (which would normally call into question the necessity of having a database this large but is somehow portrayed as an indicator of the agency's restraint).
Pauley also addresses the limitations of the oversight pertaining to the Section 215 program, but again, finds nothing particularly wrong with the way information dissemination was handled.
The following year, when section 215 was again scheduled to sunset, senators were informed of an updated classified document available for their review. See Letter from Sens. Feinstein Chambliss to Colleagues (Feb. 8, 2011) (ECF No. 33-11). Apparently some Senators did review it while other Members of Congress did not. The House Intelligence Committee did not make the document available to members of the House. Dozens of House members elected in 2010 therefore never had an opportunity to review the classified document. While this is problematic, the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance.
No harm, no foul. The executive branch -- one of three branches charged with oversight -- did what it was supposed to, therefore a second branch's (intentional) failure to provide adequate oversight isn't an issue.
Pauley maintains that the collection is "necessarily broad" because fighting terrorism is a matter of prevention, rather than a matter of investigation. Since the NSA CAN'T know what it's looking for, it needs it all. This has proven to be a problem for the intelligence agency, as its tendency to collect as much as it can has swamped analysts in mountains of data, most of which serves absolutely no purpose. But Pauley ignores this reality while dismissing the ACLU's arguments, stating that the Section 215 collection will always
be "relevant" to the NSA's security agenda.
But this is all a sideshow. The real question is whether the Section 215 collection violates the Fourth Amendment. Pauley looks at Smith v. Maryland
and decides it does not, quoting Smith's assertion that a person has "no legitimate expectation of privacy in information he voluntarily turns over to third parties." The ACLU argued that the collection of metadata allows for the construction of a "rich mosaic" of information about any citizen and is much more revealing than the government will admit. Pauley dismisses the ACLU's "parade of horribles" by quoting none other than Gen. Alexander.
General Alexander's testimony on this point is clear:
[l]n the open press there's this discussion about pattern [that the Government is] out there doing pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We're not authorized to do it. We aren't doing it. There are no automated processes running in the background pulling together data trying to figure out networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.
Pauley also makes the claim other judges have made -- if a single instance isn't a Fourth Amendment violation then the millions of simultaneous collections don't suddenly create a Fourth Amendment issue. Rights do not spring into existence based on scope.
But even as Pauley acknowledges the possibility that the ubiquity of cellphones has created a climate much different than the one the 1979 ruling took place in, he relies on that case's previous assertion to buttress his claim that no rights are being violated by the Section 215 collection. He then goes on to relay the government's arguments that security -- and the War on Terror -- should necessarily trump all constitutional objections.
Here, the balance of the equities and the public interest tilt firmly in favor of the Government's position. "Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the highest order." Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010); see also Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation") (internal quotation marks omitted); In re: Directives [REDACTED] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev. 2008) ("[T]he relevant government interest-- the interest in national security--is of the highest order of magnitude").
The Constitution vests the President with Executive Power. U.S. Const. Art. ll. That power reaches its zenith when wielded to protect national security. Cf. Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion . . rest[s] heavily upon any who might attack it." (internal quotations omitted))...
But of all the assertions Pauley makes, this one is most incredible (and regrettable):
The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America's enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court's view, they offer ample justification.
Even those on the direct payroll of intelligence agencies have had trouble pinpointing
the program's success in preventing terrorist attacks. For Pauley to claim that the "effectiveness can't be seriously disputed" is laughable. The last several months have seen many question the effectiveness of the Section 215 program and the challenges issued by the NSA's many critics have yet to be definitively answered. Pauley treats the NSA's assertions as gospel.
When he sticks to the previous readings of the Third Party Doctrine, he's on safe ground, precedent-wise. There's no need to entertain the NSA's talking points in order to simply agree with previous rulings. The issue here is that these rulings are outdated and the Third Party Doctrine needs a serious reexamination. Pauley's allowance of the government's arguments unchallenged is the real issue here. He may not be able to find where they've violated the Fourth Amendment, but he should at least be willing to attack its tepid propaganda with the same enthusiasm he showed for dismantling the ACLU's arguments. But he didn't and now the agency has another court decision that gives its ridiculous talking points more credence.