The answer to this question is being pondered across America in light of two seemingly contradictory federal court decisions handed down this month from two separate courts, one in Washington, the other in New York

Beirut
The answer to this question is being pondered across America in light of two seemingly contradictory federal court decisions handed down this month from two separate courts, one in Washington, the other in New York.

Since the Bush Administration’s “war of terrorism” was launched, civil liberties advocates have voiced growing alarms about the erosion of Constitutional guarantees. Yet with the disclosures by whistle blower Edward Snowden, concerns about what protections Americans have remaining—protections from governmental intrusions into their privacy as well as home or office invasions by police forces—have rapidly gained new impetus. Because of Snowden’s leaks, legal challenges have been brought against the National Security Agency; without the leaks, no challenge could have been mounted.

Now all of a sudden two US Federal District Courts, with identical powers under the US Constitution, have reached seemingly opposite conclusions on the same legal issue, i.e. the right of the NSA to conduct “metadata” searches and store the information of scores of millions of unknowing Americans. This means, given that appeals have been filed in both cases, that the issue is likely going to be decided by the US Supreme Court.

Civil libertarians were encouraged earlier this month when Federal Judge Richard Leon of the United States District Court for the District of Columbia ruled on December 16 that the NSA’s bulk collection of cell phone data of Americans (everyone you called, when you called them, and where you were when you called them) violates the Fourth Amendment to the Constitution.

Calling the data gathering “Orwellian,” Judge Leon reasoned that we now use our smartphones for a wide variety of personal activities in which we have the expectation of privacy, that probably we have more expectation of privacy from cell phones now than we did, say, from a pay phone in the 1980s. And he also noted, crucially, that cell phones today make it possible to determine the caller’s GPS location. “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government,” Leon wrote.

The judge then focused on whether the massive NSA surveillance violates the Fourth Amendment, which guarantees, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

He writes: “The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes and investigates that data without prior judicial approval of the investigative targets. If they do – and a Fourth Amendment search has thus occurred–then the next step of the analysis will be to determine whether such a search is ‘reasonable.’”

Judge Leon found that the NSA, when demanding citizens’ telephone metadata, is conducting a search, and that it is most likely an unreasonable search under the Fourth Amendment, given there is no specific suspicion of wrongdoing by any individual whose records are demanded.

In his ruling he granted the request for an injunction against the collection of the plaintiffs’ phone data, ordering the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion what he termed as the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

But no sooner had Judge Leon’s decision been published, bringing hope to civil libertarians, than US District Judge William H. Pauley III in New York issued what looks almost like a diametrically antithetical ruling, making for the latest in a contentious debate that has also seen a presidential commission weighing in on certain aspects of NSA spying as well. On December 27, Pauley ruled that the NSA’s collection of vast oceans of data on private phone calls is legal— meaning that in a period of just 11 days the two judges, along with the presidential panel, had reached “the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis,” as the New York Times reported it.

The case in New York was brought by the American Civil Liberties Union, which said it would appeal.

Judges Leon and Pauley have starkly differing understandings on how valuable the NSA program is. Echoing arguments made recently by former FBI director Robert S. Mueller III and other senior government officials, Pauley, whose courtroom is not far from where the World Trade Center towers stood, said he believed the program might have caught the 9/11 hijackers had it been in place at the time. “While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful,” Pauley wrote. “This court finds it is.”

Judge Pauley decided to avoid compelling US Constitutional issues and applications of its provisions to the NSA case.  He chose to ignore 4th Amendment prohibitions on unreasonable government searches of private papers and effects.  As Professor Juan Cole recently reminded us, the 14th Amendment was the basis for a recent Supreme Court ruling forbidding law enforcement from using GPS tracking without a warrant. The courts decided that following someone around 24/7 as a “search” because such intensive monitoring of a person’s movements goes beyond just glimpsing the individual in public. NSA collection of metadata from cell phones track individuals just as a GPS devices do.

Other applicable US Constitutional provisions ignored by Judge Pauley include the 1789 Federalist promoted 9th Amendment, which a majority of the Founding Fathers wanted as guarantees that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 9th Amendment is clearly designed to block the government from constraining people’s private behavior.  As Cole points out, not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are also protected as a free people from government intrusions.

But there are other places in the constitution and in the history of court rulings that prescribe privacy for individuals from government intrusion. In fact, although “privacy” is not mentioned in the US constitution, the Supreme Court found in Connecticut v. Griswold that American citizens had a constitutional right to use birth control and that the state could not arbitrarily come into the bedroom and prohibit it. Some of the justices referred to the 9th Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is, the government can’t just wake up in the morning and decide to constrain people’s private behavior. Not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are protected in general as a free people from government intrusions.

Judge Pauley also ignored the relevant application of the 14th Amendment.  In Griswold v. Connecticut, 381 U.S. 497 (1965) a landmark case in which the Supreme Court ruled that the Constitution protected a right of privacy, justices referenced the due process clause of the 14th amendment, which commands that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The late great Justice William O. Douglas  argued that “the Bill of Right’s specific guarantees have “penumbras,” created by “emanations from these guarantees that help give them life and opinion.”

It was Douglas’ interpretation of the US Constitution that, the “spirit” of the First Amendment (free speech), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment, creates a general “right to privacy” that cannot be unduly infringed.” In his view there exists as part of the US Constitution” a penumbra” of privacy.

Judge Pauley ignored these and other Constitutional applications in order to uphold the NSA informational gathering project in spite of the fact that the NSA, every minute for the past 7 years and until today, is abridging the privileges and immunities of a free citizenry. They are depriving us of liberty without due process of law, for the reason that they have failed to obtain a judicial warrant based on grounds of specific evidence of wrong-doing.

Judge Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation. “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote.

The finding stands in stark contrast to Leon’s ruling in Washington:

“The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” Judge Leon wrote. What these conflicting decisions leave us in is a profound quandary with respect to the issues raised by Edward Snowden. In a Christmas address that was carried by British Channel 4 and widely aired on the Internet, the former NSA contractor expressed the legitimate concern of all people who value individual liberty and privacy. A child born today, he said, might “never know what it means to have a private moment to themselves, an unrecorded, unanalyzed thought.” He added that people are essentially walking around with a tracking device in their pockets, noting that this disappearance of privacy is important because privacy “is what allows us to determine who we are and who we want to be.”