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Breaking: Federal District Judge Pauley Finds NSA Bulk Metadata Collection Constitutional

NSA headquarters in Fort Meade, Maryland.

In contrast to Judge Richard Leon’s opinion issued last week in Klayman v. Obama, Federal District Judge William Pauley ruled today in ACLU v. Clapper that the NSA Bulk Telephony Metadata Collection program does not violate the Fourth or First Amendments to the Constitution. Drawing upon the Supreme Court’s decision in Smith v. Maryland, Judge Pauley held that that persons who provided information to third parties had no reasonable expectation of privacy. As Judge Pauley explains:

The right to be free from searches and seizures is fundamental, but not absolute. As Justice Jackson famously observed: “the Bill of Rights is not a suicide-pact.” Terminiello v. City of Chicago, 3 3 7 U.S. 1 ( 1949). Whether the Fourth Amendment protects bulk telephony metadata is ultimately a question of reasonableness. Missouri v. McNeely, 133 S. Ct. 1552, 1569-70 (2013) (“[T]he ultimate touchstone of the Fourth Amendment is reasonableness.”). Every day, people voluntarily surrender personal and seemingly-private information to transnational corporations, which exploit that data for profit. Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.

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.  While there have been unintentional violations of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool. And once detected, those violations were self-reported and stopped. The bulk telephony metadata collection program is subject to executive and congressional oversight, as well as continual monitoring by a dedicated group of judges who serve on the Foreign Intelligence Surveillance Court.

No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States. That is by design, as it allows the NSA to detect relationships so attenuated and ephemeral they would otherwise escape notice. As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific, Technology allowed al-Qaeda to operate decentralized and plot international terrorist attacks remotely. 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.

“Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.” Boumediene, 553 U.S. at 798. The success of one helps protect the other. Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil. The 9/11 Commission Report, at 395. A court’s solemn duty is “to reject as false, claims in the name of civil liberty which, if granted, would paralyze or impair authority to defend [the] existence of our society, and to reject as false, claims in the name of security which would undermine our freedoms and open the way to oppression. American Comm’cns Ass’n, C.I.O. v. Douds, 339 U.S. 382,445 (1950) (Jackson, J., concurring in part and dissenting in part).

For all of these reasons, the NSA’s bulk telephony metadata collection program is lawful. Accordingly, the Government’s motion to dismiss the complaint is granted and the ACLU’ s motion for a preliminary injunction is denied. The Clerk of Court is directed to terminate the motions pending at ECF Nos. 25 and 32 and to mark this case closed.

This does not seem to be an unreasonable conclusion. Needless to say, this decision will almost certainly be appealed to the Second Circuit Court of Appeals. And, similarly, Judge Leon’s opinion will be appealed to the D.C. Circuit. So, there is much more to come!

(HT: Raffaela Wakeman at Lawfare, for posting portions of a non pdf version of the opinion that I could paste in!)

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.