Southern District of New York Judge William Pauley III declared in a December 27 decision that the NSA surveillance program — which draws in every American's telephone records without a warrant or probable cause — was “legal” even though it “imperils the civil liberties of every citizen.” The decision contrasts sharply with a decision two weeks ago by Washington, D.C. District Court Judge Richard Leon that termed the warrantless surveillance program unconstitutional and “almost Orwellian.”
Almost Orwellian was no problem for Pauley, who found that the Constitution should not get in the way of programs the government claims have worked: “The question for this Court is whether the Government's bulk telephony metadata program is lawful. This Court finds it is.”
Pauley dismissed the lawsuit by the ACLU despite acknowledging that “This blunt tool works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen.”
Metadata is the record created by a telephone call, and includes the number calling and the number called, as well as the time and duration of the call. The NSA also has other programs to collect Internet traffic and other data on Americans, but these other programs were not the subject of the lawsuit dismissed by Pauley.
Pauley claimed, however, that “Bulk telephony metadata collection is subject to extensive oversight by all three branches of government. It is monitored by the Department of Justice, the Intelligence Community, the FISC [Foreign Intelligence Surveillance Court], and Congress.”
Pauley's claim is not backed up by the facts, nor even by the text of his own 54-page decision. The public record is devoid of any serious restrictions on NSA created by the intelligence community or the Justice Department. And the FISC has turned out to be an NSA lapdog, not a watchdog. The Wall Street Journal reported back on June 9 that “From 1979 through 2012, the court overseeing the Foreign Intelligence Surveillance Act has rejected only 11 of the more than 33,900 surveillance applications by the government, according to annual Justice Department reports to Congress.”
Indeed, Pauley's decision — despite touting “extensive oversight” from FISA courts — acknowledged “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.”
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