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Judge Pauley and the NSA

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