The Uneasy Truce between Personal Security and Personal Liberty

The heated debate over whether the National Security Agency's bulk collection of millions of Americans' telephone records is unconstitutional became even hotter Friday, when a federal judge in Manhattan upheld the legality of the program and cited its need in the fight against terrorism after another federal judge recently concluded it was likely not constitutional. US District Judge William H. Pauley III disagreed with the view expressed earlier this month by US District Judge Richard Leon in Washington D.C. Their deffering conclusions set the stage for federal appeals courts to consider the delicate balance developed when the need to protect national security clashes with civil rights established in the Constitution. Pauley concluded the NSA megadata collection program was a necessary extension of steps taken after the September 11 terrorist attacks. He said the program allows the government to connect fragmented and fleeting communications and "represents the government's counter-punch" to al-Qaida's terror network use of technology to operate in a decentralized mode while plotting international terrorist attacks remotely. 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 Washington, D.C. jurist said the program likely violates the US Constitution's ban on unreasonable search. The judge has since stayed the effect of his ruling, pending a government appeal. Both cases will now move to the next level of appeals courts and most legal observers believe the question will eventually be settled by the Supreme Court, very probably on a "fast track" that will permit a speedy Supreme Court decision. Pauley said the mass collection of phone 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." He added : "As the September 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-Qaida 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-Qaida." Judge Pauley gave the example of the US intelligence interception of seven calls made by a hijacker in San Diego prior to the Trade Tower attacks, but mistakenly concluded that he was overseas because it lacked the kind of information it can now collect. However, Pauley wrote, these government anti-terrorist surveillance acts left unchecked, "imperils the civil liberties of every citizen" and he noted the lively debate about the subject across the nation, in Congress and at the White House. Pauley said the question before the court was whether the NSA metadata collection 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, so that the program has sufficient oversight and transparency. Citing the events of September 11, the judge said the US government adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program - a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data," he said. Pauley thus dismissed a lawsuit brought by the American Civil Liberties Union, which promised to appeal to the 2nd U.S. Circuit Court of Appeals in Manhattan. An American Civil Liberties Union lawyer, Brett Max Kaufman, assigned to the NSA case project, said ACLU was very disappointed in Judge Pauley's decision. "This mass call tracking program constitutes a serious threat to Americans' privacy and we think Judge Pauley is wrong in concluding otherwise." NSA spokeswoman Vanee Vines declined to comment. Last month in arguments before Judge Pauley, an ACLU lawyer argued that the federal government's interpretation of the Patriots Act is so broad that it could justify "the mass collection of financial, health and even library records of innocent Americans without their knowledge, including whether they had used a telephone sex hotline, contemplated suicide, been addicted to gambling or drugs or supported political causes." A government lawyer had answered that counterterrorism investigators wouldn't find most personal information useful. Pauley said there were safeguards in place, including the fact the NSA cannot query the phone database it collects without legal justification and is limited in how much it can learn. He also noted "the government repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles....The NSA-run programs pick up millions of telephone and Internet records that are routed through American networks each day." Pauley said the fact that the ACLU would never have known that metadata related to its telephone numbers was collected but for Edward Snowden's disclosures added "another level of absurdity in this case....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. To hold otherwise would spawn mischief," he wrote. Pauley also rejected the ACLU's argument that the phone data collection program is too broad and contains too much irrelevant information. Because without all the data points, the government cannot be certain it connected the pertinent ones," he said. "Here, there is no way for the government to know which particle of telephony metadata will lead to useful counterterrorism information. When that is the case, courts routinely authorize large-scale collections of information, even if most of it will not directly bear on the investigation." ~~~~~ Dear readers, in the NSA case now working its way through US federal courts, there will be no easy or completely satisfactory decisions. The need to protect Americans and America from al-Qaida based terrorist attacks inevitably means that a confrontation with the constitutional right to personal privacy will occur. We must now follow the facts of the case as they become clearer and then study how the federal courts and finally the Supreme Court apply them to that constitutional right. The outcome will be one in which no one is totally happy. We can only hope that personal liberties can survive in the world in which we find ourselves.