The heated debate over the US National Security Agency’s (NSA) bulk collection of millions of Americans’ telephone records fell squarely into the courts when a federal judge in Manhattan upheld the legality of the program on Friday, just days after another federal judge concluded it was likely not constitutional.
Friday’s ruling by US District Judge William H. Pauley III and an opposing view earlier this month by US District Judge Richard Leon in Washington sets the stage for federal appeals courts to confront the delicate balance developed when the need to protect national security clashes with civil rights established in the US Constitution.
Pauley concluded the program was a necessary extension of steps taken after the Sept. 11, 2001, terrorist attacks on the US. He said the program lets the government connect fragmented and fleeting communications and “represents the government’s counterpunch” to al-Qaeda’s use of technology to operate decentralized and plot international terrorist attacks remotely.
“This blunt tool only works because it collects everything,” Pauley said. “The collection is broad, but the scope of counterterrorism investigations is unprecedented.”
Pauley’s decision contrasts with Leon’s grant of a preliminary injunction against the collecting of phone records of two men who had challenged the program. The DC jurist said the program likely violates the US Constitution’s ban on unreasonable search.
Both cases now move to appeals courts for a conflict that some believe will eventually be settled by the US Supreme Court. The chances that the top court will address it increase if the appeals courts reach conflicting opinions or if the program is declared illegal.
Pauley said the mass collection of data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find. As the Sept. 11 attacks demonstrate, the cost of missing such a threat can be horrific.”
Pauley said the attacks “revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu and it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.”
The judge said the agency intercepted seven calls made by one of the Sept. 11 hijackers in San Diego prior to the attacks, but mistakenly concluded that he was overseas because it lacked the kind of information it can now collect.
Still, Pauley said such a program, if unchecked, “imperils the civil liberties of every citizen.”
“The question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is, but the question of whether that program should be conducted is for the other two coordinate branches of government to decide,” he said.