Judge: NSA phone surveillance legal

Federal official says program warranted in fight against terror.
Associated Press
Dec 27, 2013

The heated debate over the National Security Agency's bulk collection of millions of Americans' telephone records fell squarely into the courts Friday, when a federal judge in Manhattan upheld the legality of the program and cited its need 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. sets the stage for federal appeals courts to confront the delicate balance developed when the need to protect national security clashes with civil rights established in the Constitution.

Pauley concluded the program was a necessary extension of steps taken after the Sept. 11 terrorist attacks. He said the program lets the government connect fragmented and fleeting communications and "represents the government's counter-punch" to the al-Qaida's terror network's use of technology to operate decentralized and plot international terrorist attacks remotely.

"This blunt tool only works because it collects everything," Pauley said. "The collection is broad, but the scope of counterterrorism investigations is unprecedented."

Pauley's decision contrasts with Leon's grant of a preliminary injunction against the collecting of phone records of two men who had challenged the program. The Washington, D.C. jurist said the program likely violates the U.S. Constitution's ban on unreasonable search. The judge has since stayed the effect of his ruling, pending a government appeal.

Both cases now move to appeals courts for a conflict that some believe will eventually be settled by the Supreme Court. The chances that the nation's top court will address it increase if the appeals courts reach conflicting opinions or if the current use of the program is declared illegal.

Pauley said the mass collection of phone data "significantly increases the NSA's capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata,NSA can draw connections it might otherwise never be able to find."

He added: "As the Sept. 11 attacks demonstrate, the cost of missing such a threat can be horrific."

Pauley said 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."

The judge said the NSA intercepted seven calls made by one of the Sept. 11 hijackers in San Diego prior to the attacks, but mistakenly concluded that he was overseas because it lacked the kind of information it can now collect.

Still, Pauley said such a program, if unchecked, "imperils the civil liberties of every citizen" and he noted the lively debate about the subject across the nation, in Congress and at the White House.

"The question for this court is whether the government's bulk telephony metadata program is lawful. This court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of government to decide," he said.

A week ago, President Barack Obama said there may be ways of changing the program so that is has sufficient oversight and transparency.

In ruling, Pauley cited the emergency of the program after 20 hijackers took over four planes in the 2001 attacks, flying two into the twin towers of the World Trade Center, one into the Pentagon and a fourth into a Pennsylvania field as passengers tried to take back the aircraft.

"The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. 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 said.

Pauley dismissed a lawsuit brought by the American Civil Liberties Union, which promised to appeal to the 2nd U.S. Circuit Court of Appeals in Manhattan.

"We're obviously very disappointed," said Brett Max Kaufman, an attorney with the ACLU's National Security Project. "This mass call tracking program constitutes a serious threat to Americans' privacy and we think Judge Pauley is wrong in concluding otherwise."

Justice Department spokesman Peter Carr said: "We are pleased the court found the NSA's bulk telephony metadata collection program to be lawful."

NSA spokeswoman Vanee Vines declined to comment.

In arguments before Pauley last month, an ACLU lawyer argued that the government's interpretation of its authority under the Patriot Act was so broad that it could justify the mass collection of financial, health and even library records of innocent Americans without their knowledge, including whether they had used a telephone sex hotline, contemplated suicide, been addicted to gambling or drugs or supported political causes. A government lawyer had countered that counterterrorism investigators wouldn't find most personal information useful.

Pauley said there were safeguards in place, including the fact the NSA cannot query the phone database it collects without legal justification and is limited in how much it can learn. He also noted "the government repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles."

The ACLU sued earlier this year after former NSA analyst Edward Snowden leaked details of the secret programs that critics say violate privacy rights. The NSA-run programs pick up millions of telephone and Internet records that are routed through American networks each day.

Pauley said the fact that the ACLU would never have learned about an order authorizing collection of telephony metadata related to its telephone numbers but for Snowden's disclosures added "another level of absurdity in this case."

"It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets — including the means and methods of intelligence gathering — could frustrate Congress's intent. To hold otherwise would spawn mischief," he wrote.

Pauley also rejected the ACLU's argument that the phone data collection program is too broad and contains too much irrelevant information.

"That argument has no traction here. Because without all the data points, the government cannot be certain it connected the pertinent ones," he said. "Here, there is no way for the government to know which particle of telephony metadata will lead to useful counterterrorism information. When that is the case, courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation."

 

Comments

Simple Enough II

I only read the 1st two paragraphs, and came to the conclusion that our government over time has decide that "WE" are the enemy and must be controlled, regulated, and subjucated. I'm not paranoid, just fearful of perceived authority and usurped power.

Stop It

Check this, Simple Enough II:

http://thefreethoughtproject.com...

Don S

Simple Enough 2 says it, because if you read only the 1st two paragraphs, then you are uninformed and misinformed. That is the problem today, people draw conclusions before all the facts are known. That is like, "Once upon a time", will tell you what the entire story is about.

Raoul Duke

And that's how terrorism works. Those dummies from the middle east didn't even know how well their tactics were going to work.

Really are you ...

How does the NSA know which phone call Is terrorist related? Profiling? If a keyword filter is used, then keyword in on drug activity slang. If they want to monitor our semi-private conversations, well then, how many Mary Janes are there in the world. They would zero in on the big fish so fast. Use the keyword filters on human trafficking. They would go get flooded every time someone said sex. This is a global collection. How many sleeper cells have they gotten to since 9/11? Didn't stop Benghazi. If the government has a grudge against you, isn't this borderline entrapment? Don't think, let us tell you what is right for you.

Breaking News

"If tyranny and oppression come to this land it will be in the guise of fighting a foreign enemy."

James Madison

Really are you ...

If the government doesn't like you, under the Patriot Act, they can say terrorist for any reason. No trial and no jury, just detained for however long the government seems necessary. Too bad it is not open to repeat criminals and thugs.

The Bizness

That may or may not be a true quote from James Madison.
http://technoccult.net/archives/...

Nemesis

Irrelevant, since its meaning is identical to two quotes for which your linked article does have sources, but your position against liberty is noted.

The Bizness

You assume I am in favor favor of the NSA prog am, but I am really not. I do get annoyed when quotes are thrown out, when they may or may not be accurate, it happens all the time in chain emails. Yes, he does have similar quotes, but they are by no means identical.

Nemesis

Their MEANING is identical.

Contango

Re: "That may or may not be a true quote from James Madison."

Thanks for the link.

Reads as though the author only sourced Wiki. Reads potentially specious.

I tend to use Wiki as a primer, not as the definitive source of info.

BrainyQuote and others quote it - good enough for me.

Raoul Duke

No matter who said it, or repeats it, it still seems to be pretty true, unfortunately. Though greed has to factor into that somehow. And maybe flat out ignorance.

Contango

Re: "Though greed has to factor into that somehow."

Greed & fear; two of the basic motivators of human nature.

The central planning collectivists use those two in order to help consolidate power and control over the populace by spreading insecurity and guilt (shared sacrifice).

"I think the American people want security over freedom"

- Jake Tapper, CNN, Dec. 19, 2013.

Put a fork in it - it's DONE.

Raoul Duke

I kind of think that the American public equates security with freedom at this point.

Contango

Re: "the American public equates security with freedom ,"

And the German people thought that they were free under the Nazis as well.

Freedom is lost gradually by almost unnoticeable legislative drips and drabs.

http://www.press.uchicago.edu/Mi...

The Bizness

I understand contango, I typically google a lot of quotes to find if they are accurate or not. It is a pet peeve of mine.

Contango

While recently reading a book on the Revolutionary War, I learned that Patrick Henry's "Give me liberty or give me death," is almost an exact quote from a popular period play.

Did he say it? Probably. Is it original with him? Probably not.

When in doubt, "attributed" can be a good 'catch all.' :)

Have a good New Year's!

The Bizness

You too!

Breaking News

I don't know if it's an accurate quote or not. Does it really matter? It's a current reflection of reality. It's scary that this is what "our" government has become. It's even scarier that there are those in our society who support or don't pay attention to what is happening today.

SamAdams

Once exceptions are made to the Constitution, where do those exceptions end? We've already seen the erosion of the First Amendment (hate speech and the like). We've already seen the erosion of the Second Amendment. The Fourth is being treated more like "advice" or "for your consideration" than the absolute it really is. The Fifth? With all of this unwarranted (meaning without a warrant, not necessarily unnecessary) data collection, the heart of the Fifth Amendment has been shredded. And so on and so on...

You want absolute security? Newsflash: IT ISN'T POSSIBLE. The only way you can be completely safe is if you seal yourself into an impregnable bunker and don't let anything, including communications, go in or out. Assuming you're not willing to go to such extremes, why on earth are you so wiling to trade essential liberties for FEELING you're secure?

In 200 years, we've managed to go from a country with the greatest freedoms and successes in the world to just another government-controlled population of (mostly) fearful children who want to be taken care of. Note carefully how our economy, our technological advances, our wealth, and our standing in the rest of the world has ALSO declined. You might almost think there's a connection there!

The Bizness

I only hope that when this goes to the supreme court they find it unconstitutional.

SamAdams

I'd actually be happy to share your hope, but I can't. After SCOTUS determined that Obamacare was constitutional when, for so many reasons it isn't even close, I realized for certain that even the High Court itself can't be trusted to honor the Constitution. (I realize that there are always members who choose to piecemeal "interpret" the Constitution toward their own ends, but until now, that's not been a majority.)