Is the NSA's Spying Constitutional? It Depends Which Judge You Ask

Two recent rulings draw diametrically opposed conclusions about the same set of facts.
A protester listens to NSA officials testify before the House Intelligence Committee in October. (Reuters)

This is why we have a justice system in which lower-court conflicts rise up for resolution by a single, supreme court. This is why the law can seem, at times, to be a "same planet, different world" proposition to those who don't follow it closely (and even to those of us who do).

We have, in the span of just 10 days, seen two diametrically opposed judicial rulings about the legitimacy of the government's controversial bulk metadata collection program, the existence of which we learned about just this past year thanks to Edward Snowden. Although the two opinions apply the same law and essentially the same facts, they are so contradictory they cannot be reconciled. One judge will be proven right and the other proven wrong, although I suspect it may be 2015  before the final tally is recorded.

Last week, a federal trial judge in Washington boldly declared the NSA's bulk metadata collection program to be "likely unconstitutional," as applied to individual citizens whose phone records were collected and stored. Here is the link to that ruling, authored by U.S. District Judge Richard Leon, a nominee of President George W. Bush. It was a Republican appointee, the record will reflect, who first challenged the legality of the sprawling surveillance operation.

On Friday, a federal trial judge in New York boldly declared that very same surveillance program is constitutional as applied to the ACLU, the phone records of which also were collected and stored. Here is the link to the ruling, authored by U.S. District Judge William Pauley, a nominee of President Bill Clinton. It was a Democratic appointee, the record will also reflect, who first endorsed the legality of this once-secret, mass data collection program

Judge Leon last week issued a temporary injunction halting the program-- but then stayed the application of his ruling so that the Obama Administration could appeal it to the D.C. Circuit Court of Appeals. Judge Pauley today denied a request for an injunction by the ACLU and granted the Obama Administration's motion to dismiss the case. An appeal to the Second Circuit surely will follow. The first judge concluded the government would lose on the merits. The second judge concluded that the government had won on the merits.

Judge Pauley ruled that the NSA's collection efforts do not violate the Fourth Amendment, citing its interpretation by the Supreme Court in a 1979 case styled Smith v. Maryland. But Judge Leon ruled that the surveillance program does likely violate the Fourth Amendment's protection against unreasonable searches, and he rejected the Smith case as technologically outdated. One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith.

Judge Leon last week ruled that Congress did not intend to prevent plaintiffs whose records were seized and stored from coming to federal court to challenge the validity of the NSA's surveillance program. Judge Pauley Friday ruled that Congress indeed intended to preclude that very thing—allowing the people or companies whose records were collected to have access to federal courts while limiting the court access of the telephone companies that provided the information.

Presented by

Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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