Judge William Pauley of the federal district court in New York opened his ruling last week with a reminder about why the National Security Agency has expanded its gathering of information and intelligence. He noted that the agency once tracked calls made to an al-Qaida safe house in Yemen. What it could not obtain was the phone number of a man residing in San Diego who would become one of the Sept. 11 hijackers. The judge indicated that today the number could be captured, and it could be key to preventing another devastating attack.
The ruling hardly could be more different than the one issued two weeks ago by federal Judge Richard Leon in Washington. Judge Leon argued that the agency failed to cite “a single instance” in which its data collection stopped an imminent attack. He labeled the surveillance “almost Orwellian” and probably unconstitutional.
Thus the debate has been joined, a presidential task force adding its valuable contribution, taking a position somewhere between the two judges. Give Judge Pauley credit: His ruling works well as an essential counterargument, those looking to narrow the scope of the NSA needing to confront the points he has made.
Judge Pauley views the program as legal, within the boundaries approved by Congress and achieving an appropriate balance between the protections against unreasonable searches and combating the threat of al-Qaida and other terrorist networks. He sees those networks taking advantage of new technologies, and the government responding in kind, collecting “metadata,” phone numbers, location, length of calls, to detect patterns and connect dots.
While Judge Leon suggests the time has come to revisit court precedent about an individual having no reasonable expectation of privacy for information shared with a third party (the phone company), Judge Pauley holds that things haven’t changed that much. He argues that if the amount of data has increased greatly, the program yields little additional information about individuals, the government with more numbers to scan without putting privacy in jeopardy.
Judge Pauley reasons that the broad scope of “relevant” data is necessary if the agency is going to feel confident about the links it draws.
This clash of judges points to the Supreme Court ultimately sorting through the question. Ideally, Congress would settle the argument, focusing especially on one area of agreement between the judges, the NSA program a “blunt tool,” in the words of Judge Pauley, that “imperils” civil liberties if unchecked. If the agency has not abused its authority, the potential clearly exists. A crucial part of the country’s response to terrorism involves taking steps to prevent excesses that would rate as their own severe blow.