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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.

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