Orwell on the Bench

by CHRISTOPHER BRAUCHLI

If you want a picture of the future, imagine a boot stamping on a human face-forever.

—  George Orwell, 1984

It was easier to write the opinion by ignoring history.  And it was only one part of his opinion.  Nonetheless, he thought it was so important that it became the first thing he said right out of the box, as it were.

Judge William H. Pauley III, a District Court Judge for the Southern District of New York, dismissed a complaint filed by the American Civil Liberties Union and others.  The A.C.L.U. complaint alleged that what is known as the N.S.A.’s bulk telephony metadata collection program is unconstitutional.  Judge Pauley found it was not and, in so finding, wrote an opinion that in all important aspects arrived at the opposite conclusion from an opinion issued 11 days earlier by Judge Richard J. Leon in Washington.  Judge Leon said the N.S.A. program was “almost Orwellian” and was probably unconstitutional.

Judge Pauley begins his opinion with the following sentences:  “The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is.  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. “

Judge  Pauley discussed how the N.S.A. was unable to capture the phone number of one of the highjackers living in San Diego who the N.S.A. mistakenly  believed was living overseas.  With telephony metadata, the judge observed,  the agency would have known the highjacker was living in San Diego and could have given that information to the F.B.I.  Presumably, although not stated by the judge, that might have enabled it to thwart the 9/11 attack.  Judge Pauley then observed that the government  “learned from its mistake” and, among other things, launched “a bulk telephony metadata collection program”  which, he said: [O]nly works because it collects everything.”

In concluding as he did that “conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda” Judge Pauley chose to ignore post 9/11 reports that the intelligence community had plenty of information to “detect diffuse filaments” without metadata collections. What was lacking was the competency citizens had a right to expect from those charged with protecting the country.

According to a report in the Washington Post, the F.B.I. had been aware for many years before 9/11 that suspected terrorists were receiving training in American flight schools.  It took no action to apprehend or specifically identify them.  According to a report in the New York Times, Abdul Hakim Murad (who was convicted in 1996 of conspiring and attempting to blow up 12 commercial airliners while flying over the ocean) confessed  to authorities following his arrest in the Philippines that he planned to use his flight training to “fly a plane into C.I.A headquarters in Langley, Va. or another federal building.”  Rodolfo Mendoza, a Philippine intelligence investigator, told CNN that that information was shared with the F.B.I. in 1995.   A 1999 analysis prepared for the National Intelligence Council said:  “Suicide bomber(s) belonging to al Qaeda’s Martyrdom Battalion could crash-land an aircraft packed with high explosives . . . into the Pentagon, the headquarters of the Central Intelligence Agency (CIA), or the White House.

In July 2001 an F.B.I. agent in Phoenix told F.B.I. headquarters it should investigate Middle Eastern men enrolled in American flight schools and mentioned Osama bin Laden by name.  In his memo he suggested men in flight school might be planning terrorist attacks. A CBS report describes in considerable detail other clues the government had that  terrorist attacks might be contemplated, giving specifics as to the kinds of activities contemplated.  In  a press conference following 9/11 Ari Fleischer, the press secretary said:  “It is widely known that we had information that bin Laden wanted to attack the United States or United States interests abroad.”

What is now known is that it was not the absence of a program ignoring Americans’  constitutional rights that permitted 9/11.  Collecting “bulk telephony metadata” does nothing to correct the intelligence failures that permitted 9/11 to happen.  Those intelligence failures were failures by those in charge to do what citizens had a right to expect them to do.

Judge Pauley concludes:  “No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States.  That is by design, as it allows the N.S.A. to detect relationships so attenuated and ephemeral they would otherwise escape notice.  As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific. . . . ”  The judge could have simply observed that the cost of missing the other threads that have been widely discussed is equally horrific.  Correcting the reasons for those failures can be taken without creating what Judge Leon so aptly described as “Orwellian.”  As Judge Leon said in his ruling:  “I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgement of freedom of  the people by gradual and silent encroachments by those in power’ would be aghast.”  So are many citizens.  Whether members of the U.S. Supreme Court are aghast, only time will tell.

Christopher Brauchli is a lawyer living in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu

Christopher Brauchli is an attorney in Boulder, Colorado.

Like What You’ve Read? Support CounterPunch
July 30, 2015
Bill Blunden
The NSA’s 9/11 Cover-Up: General Hayden Told a Lie, and It’s a Whopper
Richard Ward
Sandra Bland, Rebel
Jeffrey St. Clair
How One Safari Nut, the CIA and Neoliberal Environmentalists Plotted to Destroy Mozambique
Martha Rosenberg
Tracking the Lion Killers Back to the Old Oval Office
Binoy Kampmark
Dead Again: the Latest Demise of Mullah Omar
Kathy Kelly – Buddy Bell
No Warlords Need Apply: a Call for Credible Peacemaking in Afghanistan
Ramzy Baroud
Darker Horizons Ahead: Rethinking the War on ‘IS’
Stephen Lendman
The Show Trial of Saif Qaddafi: a Manufactured Death Sentence
John Grant
The United States of Absurdity, Circa 2015
Karl Grossman
The Case of John Peter Zenger and the Fight for a Free Press
Cesar Chelala
Cultural Treasures Are Also Victims of War
Jeff Taylor
Iowa Conference on Presidential Politics
July 29, 2015
Mike Whitney
The Politics of Betrayal: Obama Backstabs Kurds to Appease Turkey
Joshua Frank
The Wheels Fell Off the Bernie Sanders Bandwagon
Conn Hallinan
Ukraine: Close to the Edge
Stephen Lendman
What Happened to Ralkina Jones? Another Jail Cell Death
Rob Wallace
Neoliberal Ebola: the Agroeconomic Origins of the Ebola Outbreak
Dmitry Rodionov
The ‘Ichkerization’ Crime Wave in Ukraine
Joyce Nelson
Scott Walker & Stephen Harper: a New Bromance
Bill Blunden
The Red Herring of Digital Backdoors and Key Escrow Encryption
Thomas Mountain
The Sheepdog Politics of Barack Obama
Farzana Versey
A President and a Yogi: Abdul Kalam’s Symbolism
Norman Pollack
America’s Decline: Internal Structural-Cultural Subversion
Foday Darboe
How Obama Failed Africa
Cesar Chelala
Russia’s Insidious Epidemic
Tom H. Hastings
Defending Democracy
David Macaray
Why Union Contracts are Good for the Country
Virginia Arthur
The High and Dry Sierras
Jon Langford
Mekons Tour Diary, the Season Finale, Mekonception in Redhook
July 28, 2015
Mark Schuller
Humanitarian Occupation of Haiti: 100 Years and Counting
Lawrence Ware
Why the “Black Church” Doesn’t Exist–and Never Has
Peter Makhlouf
Israel and Gaza: the BDS Movement One Year After “Protective Edge”
Carl Finamore
Landlords Behaving Badly: San Francisco Too Valuable for Poor People*
Michael P. Bradley
Educating About Islam: Problems of Selectivity and Imbalance
Binoy Kampmark
Ransacking Malaysia: the Najib Corruption Dossier
Michael Avender - Medea Benjamin
El Salvador’s Draconian Abortion Laws: a Miscarriage of Justice
Jesse Jackson
Sandra Bland’s Only Crime Was Driving While Black
Cesar Chelala
Effect of Greece’s Economic Crisis on Public Health
Mel Gurtov
Netanyahu: An Enemy of Peace
Joseph G. Ramsey
The Limits of Optimism: E.L. Doctorow and the American Left
George Wuerthner
Bark Beetles and Forest Fires: Another Myth Goes Up in Smoke
Paul Craig Roberts - Dave Kranzler
Supply and Demand in the Gold and Silver Futures Markets
Eric Draitser
China’s NGO Law: Countering Western Soft Power and Subversion
Harvey Wasserman
Will Ohio Gov. Kasich’s Anti-Green Resume Kill His Presidential Hopes?
Jon Langford
Mekons Tour Diary, Episode 4, a Bowery Ballroom Blitz