If you remember, not long ago GW Bush-appointed judge Richard Leon ruled the NSA’s phone metadata mass-collection program was illegal. Now we’ve got a completely contradictory ruling. Here’s Adam Serwer:
“The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is,” wrote U.S. District Judge William H. Pauley III on Friday. “While Americans depended on technology for the conveniences of modernity, al-Qaeda 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-Qaeda.”
Friday’s ruling was the second to uphold the NSA’s data gathering program, the scope of which was first publicly revealed in June through leaks facilitated by former NSA contractor Edward Snowden. The ruling is a relief for the NSA, which has found itself being battered by criticism not only from a federal judge and congressional legislators but the White House-appointed surveillance policy review board. The ruling may strengthen the Obama administration’s position as it resists efforts to significantly curtail the program.
Pauley took some direct potshots at Snowden and even Leon himself:
Pauley’s ruling contradicts Leon’s at almost every turn-even on whether the metadata program is effective at preventing terrorism. Where Leon had written that he had “serious doubts about the efficacy of the metadata collection program,” Pauley wrote that “the effectiveness of bulk telephony metadata collection cannot be seriously disputed. (Key federal legislators have seriously disputed it).
Pauley took notice of that dynamic in his ruling. While dismissing part of the ACLU’s lawsuit, he took a direct shot at Snowden, arguing that Congress never intended for anyone other than recipients of data requests to challenge the government’s demands. “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’ intent,” Pauley wrote.
Anyway, this will end up before the Supreme Court probably sooner rather than later. But if nothing else, these kind of 100% contradictory rulings inside of two weeks should put paid to the idea that the law is some kind of airless application of universally-agreed-upon principles. The blood and struggle of politics and society are very much in operation in the courts as well as in the legislature.
