In a surprise ruling today, a federal judge dismissed the ACLU's lawsuit against the NSA's metadata collection program, closing a major legal avenue for NSA reform. Handing down an unusually sweeping ruling, Judge William Pauley III ruled that the NSA's phone record database was fully lawful under section 215 of the Patriot Act. Beyond that, the judge ruled, "the question of whether that program should be conducted is for the other two coordinate branches of Government to decide."
"This blunt tool only works because it collects everything."
Judge Pauley opens the opinion with thoughts on the attacks of 9/11, which he describes as "a bold jujitsu." The opening paragraphs detail the case of 9/11 hijacker Khalid al-Mihdhar, who the NSA mistakenly believed was living in Yemen at the time of the attacks because of insufficient data collection. (This anecdote, based on General Alexander's congressional testimony, has been widely disputed.) The metadata collection program grew up in response to those intelligence failures, collecting more and more data so as to suss out the missed connections. Calling the program, "a wide net that could find and islolate gossamer contacts," Pauley concludes, "this blunt tool only works because it collects everything."
One key legal question centered on the status of the documents that revealed the NSA program, which were made public by former NSA contractor Edward Snowden, but are still officially classified. For Pauley, that makes it difficult to build a case on them, or claim damages. "Congress did not intend that targets of 215 orders would ever learn of them," the ruling reads. "It cannot possibly be that lawbreaking conduct by an NSA contractor that reveals state secrets...could frustrate Congress's intent. To hold otherwise would spawn mischief." As a result, he held the ACLU's claim must be dismissed.
It's unclear where the case will go from here, but at least one path leads to the Supreme Court. In a similar case earlier this month, a separate federal court ruled the phone records program was "likely unconstitutional." That disagreement sets the stage for higher level adjudication, although the cases would have to first advance through the necessary appeals. ACLU deputy legal director Jameel Jaffer described the ruling as misguided. "We are extremely disappointed with this decision, which 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," Jaffer said in a prepared statement. "We intend to appeal and look forward to making our case in the Second Circuit."