A federal judge in New York City, not far from where the Twin Towers stood, ruled today that the National Security Agency’s bulk collection of millions of Americans’ telephone records is legal. William Pauley, a Clinton appointee, found that the NSA’s program is a valuable part of the nation’s arsenal to counter the threat of terrorism and “only works because it collects everything.”
Judge Pauley’s ruling makes far more sense than the ruling of Richard Leon, a district court judge in Washington, D.C., who found NSA’s program unconstitutional. Judge Leon essentially swept aside as outdated the Supreme Court’s ruling in Smith v. Maryland that an individual has no legitimate expectation of privacy in information provided to third parties.
By contrast, and consistent with Smith, Judge Pauley held that protections under the Fourth Amendment do not apply to records held by third parties like phone companies. Noting the obvious, Judge Pauley said that that “the collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search.”
Importantly, given the one-sided anti-NSA coverage of this issue, Judge Pauley also found that the NSA’s phone records collection policy serves important national security interests. He explained that the program lets the government connect fragmented and fleeting communications and thus “represents the government’s counter-punch” to al-Qaeda which uses technology to operate decentralized and plot international terrorist attacks remotely.
The Judge found that the program “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations.” Thus, the metadata enables the NSA to “draw connections it might otherwise never be able to find.”
For example, Judge Pauley noted that the NSA intercepted seven calls made by one of the 9/11 hijackers in San Diego prior to the attacks. However, because it was not tracking all phone calls made in the U.S., the NSA missed the fact that the calls were coming from inside the U.S. “Telephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that [the terrorist] was calling the Yemeni safe house from inside the United States,” Judge Pauley said.
The judge also found that there are safeguards in place to prevent abuse of the kind asserted by the plaintiff in the case — the ACLU. These include the fact the NSA cannot query the phone database it collects without legal justification. He found no evidence to support the “parade of horribles” about which the ACLU warns.
Finally, grasping what Judge Leon missed, Judge Pauley concluded that “the question of whether [the NSA's policy] should be conducted is for the other two coordinate branches of government to decide.”
Unfortunately, President Obama may be ready to curtail the program significantly. Judge Pauley’s findings about the value of the program — findings predicated, presumably, on evidence presented by the Obama administration Justice Department — stands as a warning to Obama about the consequences of scaling it back.