A federal judge in Manhattan dismissed an American Civil Liberties Union lawsuit against the National Security Agency's call tracking program on Friday, pointing to terrorists' "bold jujitsu" in using technology against America.
In a 54-page opinion, U.S. District Judge William Pauley III found that the program was lawful and constitutional, and relied on a disputed NSA talking point to suggest that it could have been used to stop the 9/11 attacks. His opinion stands in stark contrast to that of another district judge in Washington last week. The ACLU said it intends to appeal, which could eventually set up a conflict between appeals courts that goes all the way to the Supreme Court.
"The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is," Pauley wrote. "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."
Pauley's opinion is a strong endorsement of President Barack Obama's position that the NSA program is a legal, vital tool against terrorism, but it may have come a week too late for the administration. While Pauley said the program's effectiveness "cannot be seriously disputed," U.S. District Judge Richard Leon's Dec. 16 opinion found it likely unconstitutional and was followed two days later by a White House-appointed review panel's conclusion that the program was "not essential." The latter two conclusions have strengthened the hands of congressional opponents who would like to see the program ended or reformed.
Judge Leon found that advances in technology meant that collecting individuals' phone metadata implicated their constitutional rights, but Judge Pauley wrote that even "the collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search."
Moreover, Pauley wrote, it would be an "absurdity" to permit anyone whose records had been collected to challenge the NSA in court, since Congress had allowed only for the phone companies to argue their case in the secretive Foreign Intelligence Surveillance Court.
"The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden," Pauley wrote. "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."
Pauley also paid great deference to the government's claim in multiple court filings that the call tracking program helps in the fight against terrorism. Citing the disputed case of 9/11 attacker Khalid al-Mihdhar, the judge asserted that if the surveillance program had been in place back then, it "would have furnished the missing information" required to alert the FBI to his presence in the United States. The NSA has frequently repeated that claim over the last few months, but others including former counterterrorism adviser Richard Clarke argue that the agency had all the capabilities it needed at the time.
"Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely," Pauley wrote. "The bulk telephony metadata collection program represents the Government's counter-punch: connecting fragmented and fleeting communications to re-construct and eliminate al-Qaeda's terror network."
Spokesman Peter Car said the U.S. Department of Justice was "pleased the court found the NSA's bulk telephony metadata collection program to be lawful.”
In a statement, ACLU Deputy Legal Director Jameel Jaffer, who helped argue the case in front of Pauley in October, said the group was "extremely disappointed" with the decision.
"As another federal judge and the President’s own review group concluded last week, the National Security Agency’s bulk collection of telephony data constitutes a serious invasion of Americans’ privacy," Jaffer said. "We intend to appeal and look forward to making our case in the Second Circuit.”