U.S. District Judge William H. Pauley III ruled on December 27th that the massive dragnet NSA electronic surveillance program is not just necessary but also constitutional.
This ruling, "ACLU v. Clapper," held that in the post-9/11 world, there can be no effective national security under the conditions that the American Civil Liberties Union (and many others) have claimed to be required by the 4th Amendment's privacy provision.
Judge Pauley (who was appointed by Democratic President Bill Clinton) said that the only way for the nation to have any realistic hope of avoiding another such terrorist attack is to "find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data. This blunt tool only works because it collects everything." He noted that if the database that is available to the Federal Government does not include "everything," then the information that it does include will not be able to be understood, because who is sending and receiving information from whom will not be known; a court order (and substantial delay) will be necessary, even while someone might be carrying a bomb to its intended destination.
Judge Pauley also said: "The natural tension between protecting the nation and preserving liberty is squarely presented by the Government's bulk telephony metadata collection program," in which the senders and recipients of each communication within the system are both indicated, and both identities are immediately accessible to the Government, without there being a requirement for an individual court order, in order for that metadata to become known to the Government. He went on: "Edward Snowden's unauthorized disclosure of Foreign Intelligence Surveillance Court ('FISC') orders has provoked a public debate and this litigation. While robust discussions are underway 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."
Judge Pauley cited prior rulings by the U.S. Supreme Court as the basis for his finding that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." (Smith v. Maryland, 1979.) Consequently, one's use of the third-party telephone company to transmit and receive calls is automatically to make this metadata publicly available. "The Court found that telephone customers have no subjective expectation of privacy in the numbers they dial because they convey that information to the telephone company knowing that the company has facilities to make permanent records."
Judge Pauley then dealt with the ACLU's argument that if the Government has access to these metadata, it can "reveal a person's religion, political associations," etc. Judge Pauley noted that "that is at least three inflections from the Government's bulk metadata collection," and that "The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ... The business records created by Verizon are not 'Plaintiffs' call records.' Those records are created and maintained by the telecommunications provider."
Judge Pauley likewise ruled that the ACLU's citation of the "freedom of association" provision in the First Amendment, against this program, is wrong. He concluded that "the Government's argument is well-supported" in prior rulings by the U.S. Supreme Court pertaining to this provision, one (U.S. v. Alvarez, 2012) being quite recent (and thus presumably unexceptionable to the current Justices).
Pauley basically said that the ACLU's position was founded upon "speculative fear" that the Government would use its access to this information for purposes of political retaliation, which actually would constitute Constitutional violations; but he said that "[S]uch a fear is insufficient," on its own, to make the Government's access to these metadata unconstitutional.
He went on to say: "Here, the balance of the equities and the public interest tilt firmly in favor of the Government's position." In this, he cited a 2010 Supreme Court ruling, Holder v. Humanitarian Law Project, which stated that, "Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the highest order."
He furthermore cited specific instances to show that, "The effectiveness of bulk telephony metadata collection cannot be seriously disputed."
He finally concluded: "There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks."
His ruling constitutes a clean sweep for the Obama Administration, but it will likely be appealed, and the ultimate decision will then come from the U.S. Supreme Court itself.
However, Judge Pauley's ruling comes down against every argument from the ACLU, and relies primarily upon statements from the U.S. Supreme court; so, there is very little, if any, likelihood that what the Obama Administration has been doing in this regard will be found to be unconstitutional, or in any other way in violation of the law.
Just weeks earlier, on December 16th, Federal District Court Judge Richard Leon had ruled the other way, in Klayman v. Obama, against the constitutionality of the NSA's metadata dragnet program, but he simply assumed that the Government would use the program in unconstitutional ways; he cited no evidence (nor even indication) that it had actually done so. He also granted legal standing to the individual who was challenging the program, and did so on grounds that were invalid on the basis of Judge Pauley's citations and ruling. Furthermore, Leon's ruling was loaded with other questionable assumptions, and he cited mainly lower court rulings, instead of rulings from the U.S. Supreme Court. Judge Leon is a Republican, appointed by George W. Bush.
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Investigative historian Eric Zuesse is the author, most recently, of They're Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of CHRIST'S VENTRILOQUISTS: The Event that Created Christianity.