It should have been a slam-dunk case of wholesale violation of the Fourth Amendment. But instead, the National Security Agency can spy on you anytime it wants, and without need for any bothersome warrants.
That is the opinion of one federal court anyway. As reported recently by the Washington Post, the government’s premier spy agency – which was founded to conduct international spying, not surveillance of Americans domestically – is permitted to intercept all kinds of your personal data, because, hey, they’re trying to protect us:
A federal judge in New York ruled… that the massive collection of domestic telephone data brought to light by former National Security Agency contractor Edward Snowden is lawful, rejecting a challenge to the program by the American Civil Liberties Union.
The decision marked a victory for the government less than two weeks after a District Court judge ruled against it, finding that the NSA’s program was almost certainly unconstitutional. If the split in rulings continues through the appeals process, it is likely the Supreme Court will have to decide the issue.
So, yes, one federal judge, who accurately read the Fourth Amendment and took literally its guarantee that citizens are “secure in the papers and effects” from unjustified government prying, found the NSA’s blanket surveillance unconstitutional. Another federal judge, however, did not.
But how? Aren’t all federal judges cut from the same cloth?
Hardly. Remember, federal judges are nominated to the bench by very partisan presidents; Republicans tend to nominate constitutionalists, while Democrats – tend not to. The first ruling came “in the case Klayman v. Obama, U.S. District Judge Richard J. Leon granted a request for an injunction that blocked the collection of the phone data of conservative legal activist Larry Klayman,” the Post reported. “Klayman brought his lawsuit against the president with a co-plaintiff, Charles Strange, the father of Michael J. Strange, a slain Navy cryptologic technician who was killed with a SEAL team in a helicopter crash in Afghanistan.” Leon was appointed to the U.S. District Court in Washington in 2002 by President George W. Bush.
Two judges, two rulings, two political perspectives
The second ruling, a 53-page opinion issued by U.S. District Judge William H. Pauley III, said the NSA program is the federal government’s “counter-punch” to al-Qaeda, even though the issue is the agency’s blanket collection of Americans’ phone records, and as such does not constitute a Fourth Amendment violation. Pauley was appointed to the bench in 1998 by President Bill Clinton.
“The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world,” Pauley wrote, noting that wider use of U.S. spy capabilities might have prevented the 9/11 attacks. “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 added: “This blunt tool only works because it collects everything.”
Following Pauley’s ruling, Justice Department spokesman Peter Carr said the government is “pleased the court found the NSA’s bulk telephony metadata collection program to be lawful.”
The ACLU, not so much.
“We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, an ACLU deputy legal director. She added that the ACLU will appeal.
So much for the Constitution
The legal group filed its initial suit on June 11, just a few days after the data collection program was outed by Britain’s Guardian newspaper, which based its report on classified information passed to it by Edward Snowden, an NSA analyst-turned-whistleblower.
More from the Post:
The NSA program collects records of the numbers that Americans call and the duration of those calls, but not content. Civil liberties advocates have argued that the collection and storage of that data represent a violation of Americans’ right to privacy.
The government has based its legal justification for the program on a 1979 case, Smith v. Maryland, in which the Supreme Court found Americans have no expectation of privacy in the telephone metadata that companies hold as business records and ruled that a warrant is not required to obtain such information.
How this complies with the very plain language of the Constitution is, of course, difficult to fathom, but when your government has long since grown weary of justifying its every move – and has stacked enough of the Judicial Branch to generally get its way – such rulings should not surprise us anymore.
But they should make us angry enough to vote.