A Federal Judge Uses Every Known NSA Defense in Defense of the NSA

In some good news for the NSA, a federal judge has determined that the bulk collection of phone metadata is lawful — using every conceivable argument put forward by NSA defenders to do so.

In the first bit of good news for the National Security Agency in some time, Judge William Pauley of the Federal District Court of Southern New York determined that the bulk collection of phone metadata is lawful. And in so doing, reiterated every conceivable argument put forward by NSA defenders.

Take Pauley's introduction to his opinion (which can be read in full at the bottom of this article, via Legal Times): "The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is." References to September 11th, while certainly not unwarranted, are probably the most common tool in defense of the program. Like others, Pauley suggests that if the metadata collection had been in place prior to the attacks, it "might have permitted the NSA" to provide details to the FBI about one attacker. This is the same argument used in June by then-FBI Director Robert Mueller. It has been used repeatedly since.

The metadata collection, which scoops up millions of records a day including what number is calling what number and for how long, was determined to be in likely violation of the Fourth Amendment by another judge just last week. (That judge, Richard Leon, was a Bush appointee. Pauley: Clinton.) Pauley rejects last week's assertion, indirectly, as well as the claim that the metadata provides any significant information about a user. The American Civil Liberties Union, which was a plaintiff in this case, argued that the metadata allows the "creation of a rich mosaic" about a person's life. Pauley disputes the claim given that the NSA isn't allowed to and doesn't query people's numbers indiscriminately. His source for that? In a footnote on page 41, he says it's "crystal clear": NSA head Keith Alexander said publicly that it isn't done.

Pauley argues that the data collection is effective. In fact, he says, its effectiveness "cannot be seriously disputed," listing three examples of when it has worked in the past to uncover information about terror plots. This differs in tone from President Obama's review panel, which found no evidence that the metadata program had stopped terror plots.

As for the reasonableness of the program — the key determiner of its constitutional appropriateness, Pauley says, citing Missouri v. McNeely — Pauley isn't concerned. After all:

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.

This common argument was rebutted by Edward Snowden himself in his interview with the Washington Post. Facebook and Twitter, he pointed out, don't have the ability to put "warheads on foreheads" — that is, they lack the military and authoritative power of the United States government. People are also aware that Twitter and Facebook are watching them. It's the abuse that's the concern, both of NSA opponents at large and the ACLU in particular. But Pauley doesn't consider that prohibitive.

The NSA and Keith Alexander like to point out that their actions have the sanction of the legislative branch, thanks to the oversight of congressional committees and Congress' vote to renew support for the Patriot Act on multiple occasions. Pauley agrees that this is sufficient, apparently discounting the assertion from Rep. James Sensenbrenner, the bill's sponsor, that the law has been abused. But since the NSA made documents available for review to some members of Congress for short periods — documents that offered the best possible face on the determination that the NSA had exceeded its authority in metadata collection — Pauley thinks Congress approves. "Apparently some Senators did review [the documents], while other Members of Congress did not," he writes, but, "while this is problematic, the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance." So the blame lies with Congress, not the NSA.

Pauley even had a critique of Snowden himself. Congress meant to keep those subject to collection orders under the Patriot Act from being able to sue. (This was in part to shield the companies that were assisting in the collection.) Pauley writes, "It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets — including the means and methods of intelligence gathering — could frustrate Congress's intent."

The ruling will certainly be appealed, if possible. The good news for the plaintiffs is that Pauley's arguments, nearly in their entirety, are ones that have come up time and again in the past, and are ones for which rebuttals already exist.

Update, 1:00 p.m.: The ACLU's Jameel Jaffer responded to the ruling in a statement, saying it "misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections."

Correction: An earlier version of this article called Pauley's "main argument" that the collection was reasonable and effective. His conclusion — the main argument in a legal sense — centers only on reasonableness.