Second Federal Judge Disagrees, Sides With NSA

The New York federal district court has contradicted Judge Richard Leon of the equivalent court in D.C. (see related article), deciding that the NSA’s wholesale phone data collection is legal. Leon had declared it “almost clearly unconstitutional”. Judge William Pauley in New York looks at the same facts and concludes the opposite.

Pauley entirely bought into the notion advanced by Sen. Dianne Feinstein in a Wall Street Journal op-ed and by Gen. Keith Alexander, the head of NSA, on “60 Minutes” in mid-December that, had the phone metadata archive been in place, the 9/11 attacks could have been averted. He even began his opinion with this as justification.

Time’s passage has clearly dimmed the judge’s memory. We had earlier mocked Feinstein’s claim with our recall of the many failed communications between government agencies that came to light in the analysis after 9/11. Doesn’t he remember “connect the dots”? If FBI’s suspicions weren’t aroused by one Zacarias Moussaoui taking Boeing 747 flight simulator instruction in Minneapolis without wanting to learn how to take off or land — only one of the instances of dropped balls — how could the judge argue that the myopia of those agencies would have magically cleared to spot phone calls to a Yemen safe house and connect those tiny dots to the 9/11 plot? It is a fanciful basis for a serious legal opinion.

Just after this article was first released, Politico reported that Pauley is loose with his facts. Referring to the Saudi who made those calls to Yemen from San Diego, Paulry writes in his opinion,

"The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States."

The judge bases this, and the hypothetical that NSA could have thwarted the 9/11 attacks, on the 9/11 Commission's report of 2004. But that report contains no specific mention of the calls to a Yemen safe house; NSA had refused to release such closely guarded information to the commission.

Moreover, Politico says former Florida Senator Bob Graham, who "extensively investigated" 9/11 while chairman of the Senate Intelligence Committee, said “There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar" were it not for the failure of the government agencies to share information that made headlines when revealed in 2004. In other words, the very assertion that Pauley, Alexander and Feinstein make does not owe to the absence of the metadata horde; it was instead another of the intelligence agencies' dropped balls.

For Pauley there seems nothing untoward about treating Smith v. Maryland — a 1979 Supreme Court decision involving only a single individual in a criminal case that held that the use of his phone logs as evidence was not a Fourth Amendment violation — as "bedrock" and extensible to the vacuuming without cause years of phone logs of the entire American population.

“Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties”, Judge Pauley writes. That’s not original with Pauley. It’s a stock argument from those who are unperturbed by the eroded Fourth Amendment, once uttered even by Justice Sotomayor. It pretty much says that anything goes. Forget all those privacy notices that come in the mail, because the judge says privacy is forfeit in whatever interaction we have with third parties. What’s the difference between phone records and bank records, for example? The judge is saying that NSA is equally free to sweep up your bank transactions, and everyone else's from all the nation’s banks. Will what have always been treated as privileged communications, namely, counseling sessions with those third parties called attorneys, be next?