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Not that long ago, one could assume that a judge with an activist approach to interpreting the Constitution was probably left-of-center politically and, accordingly, believed that overturning precedents was often necessary in order to make the Constitution relevant to present issues and alive to evolving democratic mores. Conversely, a judge holding a philosophy of restraint was more than likely right-of-center in his political beliefs and inclined to respect court precedents as the accumulated wisdom of the body politic, tying current and previous generations back to the Constitution’s text and founding principles.
No more — or, at least, not so readily. Last month, a judge nominated to the federal bench by “originalist” President George W. Bush summarily swept aside longstanding precedent and the accumulated and numerous judgments of his colleagues, declaring the National Security Agency’s collection of telephony metadata as not only “likely unconstitutional” but “Orwellian” in character. A little less than two weeks later, however, another federal judge — this one appointed by President Bill Clinton, a graduate of that bastion of “progressive” legal theory, Yale Law — found the program not only in accord with Fourth Amendment prescriptions and existing case law but also acting as an essential “counter-punch” to the terrorists who brought us 9/11.
The two decisions (Klayman v. Obama and ACLU v. James Clapper) have generated public confusion over the constitutionality of the NSA’s data collection program — a kind of judicial “he-said, she-said” standoff. But once the substance of the two opinions is taken into account, it’s clear who got it right.
In the first case, Judge Richard Leon’s opinion is dotted with ad hominem arguments and hyperbole. In the second, Judge William Pauley stays with the facts, is sensible in applying existing case law, and shows apt deference both to previous decisions by his colleagues on the bench and the two political branches that established and oversee the NSA program.
The cases both consider two major questions: first, whether plaintiffs have a reasonable expectation of privacy that the metadata program violates (and, hence, becomes substantively a government “search” under the Fourth Amendment); and, second, if they do, whether the search is reasonable given that amendment’s injunction against “unreasonable searches and seizures.”
On the first question, Judge Leon spends a goodly portion of his opinion arguing that the existing precedent, Smith v. Maryland (1979), is just too old to be of any relevance today. In Smith, the Supreme Court ruled that the use of a telephone pen register by police to capture a suspect’s call data was not a violation of Smith’s privacy rights since there was no “legitimate expectation of privacy.” The information collected (the numbers dialed from a particular phone and those calling in) would not only be known to the phone company as it facilitated the call, the Court argued, but also would be recorded, if only to allow the company to bill its customers later.
According to Leon, since we now use our cell phones ubiquitously and technology has transformed them into cameras, mail transmitters, calendars, music players, maps, and even pseudo-lighters at concerts, the court in 1979 could not “have ever imagined how the citizens of 2013 would interact with their phones.” Whereas in Smith, the court was reviewing a onetime, targeted request, the NSA program is a “daily, all-encompassing, indiscriminate dump of phone metadata” that amounts to “the stuff of science fiction.” And while Leon admits that, “as in Smith, the types of information” currently sought by the NSA “are relatively limited: phone numbers dialed, date, time and the like,” given how we use our phones today, the prospect of what the NSA could derive from those data should send a chill down everyone’s back. By Judge Leon’s lights, “I dial, therefore I am.” He’s seemingly worried that the very instrument of our “self-expression, even self-determination” is at risk.
In contrast, Judge Pauley keeps his feet planted firmly on the ground, noting that, while individuals may in fact use their phones in a variety of ways today that the court in Smith could not have dreamed of, the fact remains that people’s “relationship with their telecommunications providers has not changed,” and the issue before the court “only concerns” smartphones’ “use as telephones.” The data being collected by the NSA are no different in kind than what was at issue in Smith — numbers dialed, numbers calling in, and the duration of the calls. Moreover, there is no evidence that the NSA is trolling through these data to conduct “the type of data mining the ACLU warns about in its parade of horribles.”
If anything, when the actual metadata program is examined in detail, it is arguably no more intrusive than government searches at an airport security line or, as Judge Pauley notes, “a law enforcement officer’s query of the FBI’s fingerprint or DNA databases to identify someone.”
Times have indeed changed but not the essence of the issue at hand. As Judge Pauley points out: “Every day, people voluntarily surrender personal and seemingly-private information to transnational corporations, which exploit that data for profit. Few people think twice about it, even though it is far more intrusive than the bulk telephony metadata collection” that the NSA engages in. In short, Pauley concludes, neither the character of the information being collected by the government nor the expectation of privacy has so fundamentally changed that the court’s holding in Smith should be dismissed.
Since Judge Leon concludes just the opposite — that individuals do have a “very significant expectation of privacy” — he then moves on to assess whether this particular impingement on privacy might still be warranted under the Fourth Amendment as a justifiable violation by the government. Implicitly, this means balancing the government’s interest in providing security with what the court has previously declared to be the “subjective expectation of privacy that society recognizes as reasonable.”
Brushing aside in a footnote all the statutory, executive branch, and Foreign Intelligence Surveillance Court-mandated safeguards in the program that minimize the program’s intrusion on citizens’ information, Judge Leon charges forward and declares that the NSA’s “almost Orwellian” surveillance cannot be justified by the minimal security returns found in the three cases the government put forward as examples of the program’s success. In none of the three was the program key to stopping “an imminent attack.” Doubting “the efficacy” of the metadata collection program, he concludes: “NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment.”
Judge Pauley also examines the three examples provided by the government but, unlike Judge Leon, he notes that while the collection program might not have been essential in stopping an imminent attack, it was nevertheless an important aid in rounding up co-conspirators and confirming terrorist ties. In addition, as Pauley reminds, these are only the examples provided to the court to share in the open record. More pointedly, the judge opens his opinion with the example of 9/11 hijacker Khalid al-Mihdhar, whose calls from San Diego to an al Qaeda safe house in Yemen were left untracked because of existing laws and the fact that there was no metadata collection program in place at the time.
In the absence of any clear evidence that NSA’s program runs afoul of sensible expectations about privacy, Judge Pauley is unwilling, as he says, to engage in “judicial-Monday-morning-quarterbacking” over whether the collection effort is being run exactly as some might want or is only important but not immediately critical to the nation’s security. Those are issues for Congress and the president to decide.
For all the differences between the two judges’ opinions, they do agree on one thing — that we live in a different time, with different circumstances. But where Judge Leon would have the shadow of a “Brave New World” hanging over today’s discussion about NSA’s collection efforts, Judge Pauley reminds us that such programs are the result of the fact that “the September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is.” “Al Qaeda plotted in a seventh-century milieu” but employed “the technology” and “conveniences of modernity” against us. This is indeed new, and failing to adjust to that change is likely to be far more dangerous to the rights of Americans than Judge Leon’s bogeyman of an omniscient federal Big Brother.
Gary Schmitt is director of the Marilyn Ware Center for Security Studies at the American Enterprise Institute.
Last month, two federal judges rules on the constitutionality of the NSA’s collection of telephony metadata. One described it as not only likely unconstitutional but Orwellian in character whereas the other, in a more reasoned judgment, found the program not only in accord with Fourth Amendment prescriptions and existing case law but also as acting as an essential response to terrorism.
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