Two federal judges reached opposite conclusions in separate cases challenging NSA spying. One was thoughtful; the other reflected much of what is wrong with our courts. Ultimately, however, neither will matter. The NSA’s dragnet continues unabated, and only Congress is poised to stop it.
Dueling judicial rulings on NSA Spying
Two weeks ago, US District Judge Richard Leon rightly described the NSA’s domestic spying operations as an “indiscriminate and arbitrary invasion.” He ruled in favor of a preliminary injunction against the programs, and stayed his ruling pending appeals that could go on for years.
Last Friday, Judge William Pauley opined that the NSA’s program does not violate the Fourth Amendment, prompting outrage among observers who understand either the NSA’s programs, or the role of courts, better than Judge Pauley. His decision reflects a disturbing judicial deference to executive spin, and undermines not only constitutional rights, but also judicial independence.
Why Judge Pauley’s ruling is silly: what congressional oversight?
We've known for some time of executive officials of lying to Congress about the NSA's domestic dragnet.
Yet Judge Pauley’s deferential opinion states that the NSAs domestic spying programs have been subjected to rigorous oversight by all three branches of government. That is simply and demonstrably false: multiple members of Congress have publicly complained that they were kept in the dark, and even those few who were exposed to the programs through their roles on oversight committees have posed tough questions, only to hear lies in response.
Several members of Congress have gone so far as to seek the prosecution of the Director of National Intelligence for deliberately misleading Congress about the scope, extent, and scale of NSA spying —which, even after the litany of revelations this year, remain unknown to the public, press, and Congress.
Among the members of Congress seeking to curtail NSA powers are the original authors of the PATRIOT Act themselves, who claim that they never intended their signature legislative achievement to be abused as it has been over the past decade. Yet Judge Pauley relied on congressional approval of the programs.
Why Judge Pauley’s ruling is silly: effectiveness? really?
Judge Pauley also predicated his decision on the supposed effectiveness of the NSA’s programs, which the president's own review board rejected a week before the judge released his poorly reasoned opinion. Even to whatever extent the programs were proven effective -- which they have not been -- that issue would be well outside the judicial scope of inquiry.
The Fourth Amendment requires searches and seizures to be justified with a specific warrant. In this context, the crucial jurisprudential question is whether or not NSA collection of telephony metadata counts as conducting a “search” or “seizure.”
Why Judge Pauley’s ruling is silly: what’s a search?
In 1979 -- over 30 years ago, well before the rise of anything even remotely resembling the Internet -- the Supreme Court held that capturing telephony metadata did not constitute a search when the government pursued a specific target, for whom authorities had a basis for individual suspicion, in the context of a particular investigation.
None of those limiting principles apply to cases challenging the NSA's spying programs, yet judge Pauley -- like the NSA -- preposterously presents Smith v Maryland as a basis for the legality of tapping the back end of the entire phone system and Internet.
At the end of the day, there could not be a more wanton violation of the Fourth Amendment than the NSA's domestic dragnet. Judge Leon, appointed by the president responsible for initiating the programs in the first place, understood that.
At stake, in addition to the vitality of privacy, and the opportunity for dissent in America, is the independence — and legitimacy — of our judiciary. Each of these ingredients are required for our democracy to be healthy. The fact that the NSA continues to wage a decade-long assault on the American people using our own tax dollars is a clear sign that it is not.
The dueling judicial rulings are ultimately a distraction, however, as Congress is poised to take action much more quickly to resolve the current controversy.
Having said that, despite the mounting controversy and escalating momentum in Congress for dramatic restrictions on NSA powers, whatever emerges from the current legislative process is likely to remain inadequate, as most agencies involved in domestic spying have yet to draw any sustained public or congressional attention.