A ju­di­cial dif­fer­ence of opin­ion

Two judges, two views of NSA data col­lec­tion

The Washington Times Weekly - - Commentary - By David A. Keene

Ba­si­cally, we Amer­i­cans are a prac­ti­cal rather than an ide­o­log­i­cal peo­ple. We are in­ter­ested in what’s right, but al­most ob­sessed with what works. The two dis­trict court de­ci­sions that greeted us this Christ­mas on the con­sti­tu­tion­al­ity and prac­ti­cal util­ity of the Na­tional Se­cu­rity Agency’s con­tin­u­ing drive to col­lect all avail­able in­for­ma­tion on each of us re­flects this dif­fer­ence.

Wash­ing­ton D.C.- based U.S. Dis­trict Judge Richard Leon ex­am­ined the Con­sti­tu­tion and the pro­tec­tions aganst un­rea­son­able search and seizure in­cor­po­rated in the Fourth Amend­ment thereof in light of the NSA’s data col­lec­tion. He con­cluded em­phat­i­cally that the gov­ern­ment’s ac­tions vi­o­lated the law and were thus un­con­sti­tu­tional. His New York coun­ter­part, U.S. Dis­trict Judge Wil­liam Pauley, took a very dif­fer­ent ap­proach. While ac­knowl­edg­ing the trou­bling lan­guage of the Fourth Amend­ment, he con­cluded that in the real world one could safely ig­nore such sub­tleties and ruled in­stead that since he could find no ev­i­dence that the NSA had in fact mis­used the data be­ing col­lected and is in­stead work­ing might­ily to pro­tect us, the agency should be al­lowed to con­tinue.

Judge Pauley’s de­ci­sion might have been writ­ten by a ju­nior NSA publicaf­fairs of­fi­cer. In the 57-page opin­ion, Judge Pauley de­scribed the NSA pro­gram as a “coun­ter­punch” di­rected at in­ter­na­tional ter­ror­ists that doesn’t vi­o­late the pri­vacy rights of Amer­i­can cit­i­zens. The pro­gram is needed, he ar­gues, be­cause we must avoid a re­peat of the “hor­rific” at­tack on the World Trade Center. “This blunt tool only works be­cause it col­lects ev­ery­thing,” he ar­gued, and it’s needed be­cause fight­ing ter­ror­ism “is an ur­gent ob­jec­tive of the high­est or­der.”

He dis­missed con­sti­tu­tional con­cerns about over­reach and po­ten­tial dan­gers of the data col­lec­tion even while ac­knowl­edg­ing that the NSA pro­gram, as its crit­ics con­tend, “vac­u­ums up in­for­ma­tion about vir­tu­ally ev­ery tele­phone call to, from, or within the United States.” He ar­gues that the test of con­sti­tu­tion­al­ity should not be dry words on parch­ment, but “rea­son­able­ness,” and he finds what the gov­ern­ment is up to is re­ally, re­ally rea­son­able.

No one can dis­agree with Judge Pauley’s con­tention that com­bat­ing ter­ror­ism and pre­vent­ing another hor­rific 9/11-like at­tack on this coun­try and her cit­i­zens is a prime gov­ern­men­tal re­spon­si­bil­ity or even that at one level the use of a “blunt tool” might prove at least marginally use­ful in pur­su­ing th­ese ad­mirable ob­jec­tives.

This, af­ter all, was the ar­gu­ment used by the ad­min­is­tra­tion of Woodrow Wil­son dur­ing World War I as fed­eral agents rounded up and im­pris­oned thou­sands of peo­ple for ex­press­ing opin­ions not com­pletely in line with his, and it echoes Egypt’s cur­rent jus­ti­fi­ca­tions for out­law­ing the Mus­lim Brother­hood. The prob­lem is that Egypt isn’t the United States, and that Wil­son for­got for a time that here the Con­sti­tu­tion ap­plies even in times of emer­gency.

Re­ly­ing on Judge Pauley’s real-world re­al­ity ar­gu­ment to trump the niceties of the con­sti­tu­tional guar­an­tees that Judge Leon seems to take more se­ri­ously rides at one level on whether he’s right. The judge and both so­phis­ti­cated NSA de­fend­ers, such as for­mer NSA Di­rec­tor Michael V. Hay­den, and mind­less cheer­lead­ers, such as Rep. Peter T. King, New York Repub­li­can, as­sert — but have been un­able to empirically demon­strate — that NSA’s data-col­lec­tion pro­gram has made us safer or pre­vented even a sin­gle ter­ror­ist at­tack. The num­bers of “thwarted” ter­ror­ist plots NSA claimed months ago to have been pre­vented proved bogus and are no longer cited by NSA de­fend­ers, but the beat goes on. Late this sum­mer, for­mer FBI Di­rec­tor Robert S. Mueller III claimed that this NSA pro­gram could have averted 9/11; this from the head of an agency that couldn’t stop the Bos­ton Marathon bomb­ing af­ter hav­ing been handed the cell­phone num­bers of the ter­ror­ists by Rus­sian in­tel­li­gence. NSA de­fend­ers used to ar­gue for more and more data col­lec­tion. On Christ­mas Day, The Wall Street Jour­nal re­vealed that Wil­liam Bin­ney, a 30-year NSA ex­ec­u­tive who ac­tu­ally de­signed much of the soft­ware that pro­vides the foun­da­tion for NSA’s cur­rent data sweeps, thinks that the agency is col­lect­ing so much in­for­ma­tion it can­not pos­si­bly do its job. Mr. Bin­ney and oth­ers had back in the 1990s ar­gued for more lim­ited data col­lec­tion with pri­vacy safe­guards. Their plans were re­jected, and they left the agency in dis­gust when the more ex­ten­sive col­lec­tion scheme was put into place af­ter 9/11, only to face years of ha­rass­ment from their for­mer bosses.

Now Mr. Bin­ney claims the NSA is “drown­ing in use­less data” mak­ing it harder, rather than eas­ier, to track down ter­ror­ists and pro­vid­ing a con­stant temp­ta­tion to vi­o­late in­di­vid­ual rights in the name of na­tional se­cu­rity. The Jour­nal also noted that last year, sev­eral NSA se­nior an­a­lysts ac­tu­ally asked their su­pe­ri­ors for per­mis­sion to scale back on data col­lec­tion be­cause they are un­able to process or an­a­lyze ev­ery­thing the agency is scoop­ing up.

NSA de­fend­ers used to ar­gue for more and more data col­lec­tion on the grounds that the haystack in which they were search­ing for the nee­dle had to be big enough to give them some as­sur­ance that the nee­dle was in there. Now it seems the haystack is get­ting so big that it is rapidly be­com­ing un­search­able for all prac­ti­cal pur­poses.

Early last year, re­tired Ma­rine Col. Oliver North was asked about the NSA sur­veil­lance pro­gram. His au­di­ence may have ex­pected the old Ma­rine to give the same knee-jerk de­fense they were get­ting from folks like Mr. King, but he didn’t. In­stead, Mr. North said he found it trou­bling that the gov­ern­ment would treat con­sti­tu­tional guar­an­tees so cav­a­lierly, es­pe­cially since it was be­com­ing clear that col­lect­ing ev­ery­thing about every­body was the rough equiv­a­lent of col­lect­ing noth­ing use­able on any­one. The haystack was get­ting so big, he ar­gued, that you couldn’t find the nee­dle in it even if your life de­pended on it.

Some­times, Marines are smarter than fed­eral judges.

David A. Keene is opin­ion ed­i­tor of The Wash­ing­ton Times.

ILLUSTRATION BY LINAS GARSYS/THE WASH­ING­TON TIMES

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