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 Friday's decision by U.S. District Judge William Pauley in
Manhattan diverged from a ruling by another judge this month that
questioned the program's constitutionality, raising the prospect
that the Supreme Court will need to resolve the issue.
In a 54-page decision, Pauley dismissed an American Civil Liberties
Union lawsuit contending that the NSA collection of "bulk telephony
metadata" violated the bar against warrantless searches under the
Fourth Amendment of the U.S. Constitution.
The judge also referred often to the Sept. 11, 2001 attacks, in
which nearly 3,000 people died, and said broad counter-terrorism
programs such as the NSA's could help avoid a "horrific" repeat of
those events.
"This blunt tool only works because it collects everything," Pauley
wrote. "Technology allowed al Qaeda to operate decentralized and
plot international terrorist attacks remotely. The bulk telephony
metadata collection program represents the government's
counter-punch."
The program's existence was first disclosed by former NSA contractor
Edward Snowden, who is now in Russia under temporary asylum. His
leaks have sparked a debate over how much leeway to give the
government in protecting Americans from terrorism.
ACLU PLANS APPEAL
Pauley ruled 11 days after U.S. District Judge Richard Leon in
Washington, D.C. said the "almost Orwellian" NSA program amounted to
an "indiscriminate and arbitrary invasion" that was likely
unconstitutional.
Leon also ordered the government to stop collecting call data on the
two plaintiffs in that case, but suspended that portion of his
decision so the government could appeal.
The ACLU has argued before Pauley that the NSA program was an
unwarranted "dramatic expansion" of the government's investigative
powers over Americans' day-to-day lives.
Jameel Jaffer, deputy legal director of the ACLU, on Friday said the
group was "extremely disappointed" with Pauley's decision, saying it
does away with "core constitutional protections. He said the ACLU
will appeal to the 2nd U.S. Circuit Court of Appeals in New York.
White House spokesman Josh Earnest declined to comment. U.S.
Department of Justice spokesman Peter Carr said the department is
pleased with the decision.
Stephen Vladeck, an American University law professor who
specializes in national security, said if federal appeals courts in
New York or Washington, D.C. ultimately accept Leon's analysis,
"then it seems likely, if not certain, that this case will get to
the (Supreme Court) by the end of next year."
President Barack Obama has defended the surveillance program but has
indicated a willingness to consider constraints, including whether
to give control of metadata to phone companies or other third
parties. Intelligence officials have said this could prove costly
and slow investigations.
On Dec. 18, a White House-appointed panel proposed curbs on some NSA surveillance operations.
It said that because intelligence agencies could not point to
specific cases where telephony metadata collection led to a major
counter-terrorism success, the intrusiveness of such intelligence
gathering might outweigh the public benefit. Obama is expected next month to set forth his own proposals for
possible surveillance reforms.
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RUBBER STAMP, OR VITAL WEAPON?
In rejecting the ACLU motion for a preliminary injunction to block
the NSA program, Pauley said the public interest tilted "firmly"
toward the government, for which combating terrorism "is an urgent
objective of the highest order."
While acknowledging that the program "vacuums up information about
virtually every telephone call to, from, or within the United
States," he said its constitutionality "is ultimately a question of
reasonableness."
Pauley added that he found no evidence that the government had used
bulk telephony metadata for any reason other than to investigate and
disrupt terrorist attacks.
The program also faces a legal challenge by the Electronic Frontier
Foundation, a data privacy group. In a statement, the group said it
was "obviously disappointed" with Pauley's decision, but that it
would continue pursuing its own cases.
Larry Klayman, a conservative legal activist who brought the case
before Judge Leon, called Pauley's ruling "an outrageous decision
that ignores the legitimate fears of the American people and in
effect rubber stamps a police state."
Pauley was appointed to the bench by President Bill Clinton. Leon
was appointed by President George W. Bush.
Both cases interpreted a 1979 Supreme Court decision, Smith v.
Maryland, that said people have no "legitimate expectation of
privacy" regarding phone numbers they dial because they knowingly
give that information to phone companies.
While Leon said Smith's relevance had been "eclipsed" by
technological advances and the advent of cell phones, Pauley said
this did not undermine the finding that people have "no subjective
expectation of privacy in telephony metadata."
Rep. Peter King, a New York Republican and chairman of the House
Homeland Security Subcommittee on Counterintelligence & Terrorism,
in a statement said Pauley's decision "preserves a vital weapon for
the United States in our war against international terrorism."
The case is American Civil Liberties Union et al v. Clapper et al,
U.S. District Court, Southern District of New York, No. 13-03994.
(Reporting by Jonathan Stempel in New York;
additional reporting by
Mark Hosenball, Ros Krasny and Nate Raymond; editing by Leslie Gevirtz and Dan Grebler)
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