FacebookTwitterGoogle+RedditEmail

The Courts and the NSA

by WILLIAM A. COHN

Prague. 

A new year of media noise begins, and with it an avalanche of propaganda. With the public growing wary of privacy intrusions, the NSA debate is heating up and the message from power centers will focus on the effectiveness of the spy program in stopping terror attacks, the effective controls in place to prevent abuse, and the danger to the public posed by traitorous leakers of secret operations. These claims are all false.

Yet these are the claims endorsed in the December 27 ruling upholding the legality of the NSA spy program by U.S. federal judge William Pauley III in ACLU v. Clapper. Judge Pauley’s ruling is full of deference to government and its need for secrecy. However, a December 16 ruling by federal judge Richard Leon in Klayman v. Obama exposes that the claims made by the government are wrong. Judge Leon characterizes the NSA spy program as Orwellian and violating fundamental constitutional safeguards.

First and foremost, Judge Leon debunks the biggest lie of all – that the NSA spy program effectively combats terror attacks. Buried deep in his ruling is a powerful nugget of truth which exposes that when the government says “trust us” we shouldn’t. Footnote 65, at page 62 of the 68-page ruling, has received inadequate attention in the press. It reads:

The Government could have presented additional, potentially classified evidence in camera, but it chose not to do so. Although the Government has publicly asserted that the NSA’s surveillance programs have thwarted fifty-four terrorist attacks, no proof of that has been put before me.

An in camera review is a secure proceeding whereby the judge reviews allegedly sensitive information in private. If there were evidence of the actual effectiveness of the spy program the government would have no reason not to present it to a judge in camera.

Second, the judge documents the lack of effective judicial oversight or other safeguards over the NSA spy program. On December 18, a White House appointed panel agreed, concluding that neither is there evidence of the metadata collection having stopped any terror attacks, nor of the program providing effective oversight.

Finally, Judge Leon notes that if not for Edward Snowden’s leak, the plaintiffs Klayman would have been unable to proceed with their legal claims against the government and tech companies. He notes that the Supreme Court ruling in Clapper v. Amnesty International (which denied plaintiffs standing to bring legal action against the NSA) was made two weeks before the June 5, 2013 first publication in The Guardian of Snowden’s leaked information. The law requires a person bringing a legal claim to show that they have suffered some harm, which is impossible to do if the program is kept secret. The plaintiffs in Klayman were Verizon wireless customers. Thanks to Snowden’s leak they could document that Verizon was providing the NSA with metadata on its customers.

Judge Pauley argues that plaintiffs cannot use leaked information to establish standing, at pages 25-27. He says it would be absurd and only encourage mischief. But his rule would abet corrupt practices. Pauley, who begins his ruling by stating that 9/11 showed just how dangerous the world is, seems awed by government and its war on terror, which is inapt given that the Bill of Rights and Constitution constrain government power.

Divergent premises underlie these two rulings. Pauley is deferential, even reverential to the NSA (e.g., p. 48: “The effectiveness of bulk telephony metadata collection cannot be seriously disputed.” Nonsense.), while Leon argues that secrecy itself should not serve as a shield against legal liability, especially when constitutional violations are concerned. Is democracy based more on trust than mistrust? More on deference than oversight? More on secrecy than transparency? Are dissent and mischief a threat to democracy?

The ultimate question is whether people have a legitimate expectation of privacy that is violated when the government collects their digital metadata without any particularized suspicion of wrongdoing, retains all that data for five years, and then searches and investigates that data without any prior judicial approval? Do people have a right to be left alone when there is no reason to believe they have done anything wrong?

Instructive is Judge Leon’s rejection of the government’s claim that a 35-year old ruling on telephone pen registers is controlling precedent allowing NSA metadata collection and governs people’s relationship and use of their phones today. Technology has far outpaced the law, and the judge is correct that the law must now get up to speed.

Edward Snowden was clearly the most influential person of 2013. Half a year after he blew the whistle on the massive NSA spying the world is having a vibrant debate on privacy rights. As Mr. Snowden says, NSA surveillance is about power, not safety.

With a conflict between federal judges, the legality of the NSA spy program will likely be resolved by the Supreme Court in 2014, after the appeals courts in Pauley and Leon’s districts have their say. It is an open question how the Court will rule. Consider that Judge Leon was appointed by Bush 43, and Judge Pauley by Clinton. Politics and ideology are not at all predictable when it comes to views on the NSA spy program.

The Court is a powerful and conservative institution. Yet the Court is swayed by public sentiment. The best way for people to influence the law is to raise their voices. Don’t be sheeple swallowing the propaganda you are daily fed. Do your own investigation and think. Then, you won’t believe the hype and will speak out to protect your privacy and protest this abuse of power.

William A. Cohn, a member of the California Bar, lectures on law, ethics and critical thinking at the University of New York in Prague and is a visiting professor of jurisprudence at New York University in Prague.

William A. Cohn, professor of jurisprudence at New York University, and lecturer on law, ethics and critical thinking at the University of New York in Prague, teaches Media, Law & Ethics for SUNY Empire State College. His Led Astray: Legal and Moral Blowback from the Global War on Terror will be published next month by Routledge in Assessing the War on Terror.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

February 22, 2017
Mike Whitney
Liberals Beware: Lie Down With Dogs, Get Up With Fleas
John Grant
On Killers and Bullshitters*
Peter Linebaugh
Catherine Despard, Abolitionist
Patrick Cockburn
The Bitter Battle for Mosul
Ted Rall
Sue the Bastards? It’s Harder Than You Think
Yoav Litvin
The Emergence of the Just Jew
Kim Scipes
Strategic Thinking and Organizing Resistance
Norman Pollack
Mar-a-Lago, Ideological Refuge: Berchtesgaden, II
Fred Donner
Nixon and the Chennault Affair: From Vietnam to Watergate
Carl Kandutsch
Podesta vs. Trump
Ike Nahem
To the Memory of Malcolm X: Fifty Years After His Assassination
Jesse Jackson
Trump’s Tough Talk Won’t Fix Chicago
Paul Donnelly
Betsy DeVos and the War on Public Education
Ebony Slaughter-Johnson
The End of an Alliance for Police Reform
Richard Lawless
Wall Street Demanded the Nuclear Option and the Congress Delivered
Liaquat Ali Khan
Yes, Real Donald Trump is a Muslim!
Ryan LaMothe
“Fire” and Free Speech
February 21, 2017
Sharmini Peries - Michael Hudson
Finance as Warfare: the IMF Lent to Greece Knowing It Could Never Pay Back Debt
CJ Hopkins
Goose-stepping Our Way Toward Pink Revolution
John Wight
Firestarter: the Unwelcome Return of Tony Blair
Roger Harris
Lenin Wins: Pink Tide Surges in Ecuador…For Now
Shepherd Bliss
Japanese American Internment Remembered, as Trump Rounds Up Immigrants
Boris Kagarlitsky
Trump and the Contradictions of Capitalism
Robert Fisk
The Perils of Trump Addiction
Deepak Tripathi
Theresa May: Walking the Kingdom Down a Dark Alley
Sarah Anderson
To Save Main Street, Tax Wall Street
Howard Lisnoff
Those Who Plan and Enjoy Murder
Franklin Lamb
The Life and Death Struggle of the Children of Syria
Binoy Kampmark
A Tale of Two Realities: Trump and Israel
Kim C. Domenico
Body and Soul: Becoming Men & Women in a Post-Gender Age
Mel Gurtov
Trump, Europe, and Chaos
Stephen Cooper
Steinbeck’s Road Map For Resisting Donald Trump
February 20, 2017
Bruce E. Levine
Humiliation Porn: Trump’s Gift to His Faithful…and Now the Blowback
Melvin Goodman
“Wag the Dog,” Revisited
Robert Hunziker
Fukushima: a Lurking Global Catastrophe?
David Smith-Ferri
Resistance and Resolve in Russia: Memorial HRC
Kenneth Surin
Global India?
Norman Pollack
Fascistization Crashing Down: Driving the Cleaver into Social Welfare
Patrick Cockburn
Trump v. the Media: a Fight to the Death
Susan Babbitt
Shooting Arrows at Heaven: Why is There Debate About Battle Imagery in Health?
Matt Peppe
New York Times Openly Promotes Formal Apartheid Regime By Israel
David Swanson
Understanding Robert E. Lee Supporters
Michael Brenner
The Narcissism of Donald Trump
Martin Billheimer
Capital of Pain
Thomas Knapp
Florida’s Shenanigans Make a Great Case for (Re-)Separation of Ballot and State
FacebookTwitterGoogle+RedditEmail