KEENE: A judicial difference of opinion

Two judges, two views of NSA data collection

Basically, we Americans are a practical rather than an ideological people. We are interested in what’s right, but almost obsessed with what works. The two district court decisions that greeted us this Christmas on the constitutionality and practical utility of the National Security Agency’s continuing drive to collect all available information on each of us reflects this difference.

Washington D.C.- based U.S. District Judge Richard Leon examined the Constitution and the protections aganst unreasonable search and seizure incorporated in the Fourth Amendment thereof in light of the NSA’s data collection. He concluded emphatically that the government’s actions violated the law and were thus unconstitutional. His New York counterpart, U.S. District Judge William Pauley, took a very different approach. While acknowledging the troubling language of the Fourth Amendment, he concluded that in the real world one could safely ignore such subtleties and ruled instead that since he could find no evidence that the NSA had in fact misused the data being collected and is instead working mightily to protect us, the agency should be allowed to continue.

Judge Pauley’s decision might have been written by a junior NSA public-affairs officer. In the 57-page opinion, Judge Pauley described the NSA program as a “counterpunch” directed at international terrorists that doesn’t violate the privacy rights of American citizens. The program is needed, he argues, because we must avoid a repeat of the “horrific” attack on the World Trade Center. “This blunt tool only works because it collects everything,” he argued, and it’s needed because fighting terrorism “is an urgent objective of the highest order.”

He dismissed constitutional concerns about overreach and potential dangers of the data collection even while acknowledging that the NSA program, as its critics contend, “vacuums up information about virtually every telephone call to, from, or within the United States.” He argues that the test of constitutionality should not be dry words on parchment, but “reasonableness,” and he finds what the government is up to is really, really reasonable.

No one can disagree with Judge Pauley’s contention that combating terrorism and preventing another horrific 9/11-like attack on this country and her citizens is a prime governmental responsibility or even that at one level the use of a “blunt tool” might prove at least marginally useful in pursuing these admirable objectives. This, after all, was the argument used by the administration of Woodrow Wilson during World War I as federal agents rounded up and imprisoned thousands of people for expressing opinions not completely in line with his, and it echoes Egypt’s current justifications for outlawing the Muslim Brotherhood. The problem is that Egypt isn’t the United States, and that Wilson forgot for a time that here the Constitution applies even in times of emergency.

Relying on Judge Pauley’s real-world reality argument to trump the niceties of the constitutional guarantees that Judge Leon seems to take more seriously rides at one level on whether he’s right. The judge and both sophisticated NSA defenders, such as former NSA Director Michael V. Hayden, and mindless cheerleaders, such as Rep. Peter T. King, New York Republican, assert — but have been unable to empirically demonstrate — that NSA’s data-collection program has made us safer or prevented even a single terrorist attack. The numbers of “thwarted” terrorist plots NSA claimed months ago to have been prevented proved bogus and are no longer cited by NSA defenders, but the beat goes on. Late this summer, former FBI Director Robert S. Mueller III claimed that this NSA program could have averted 9/11; this from the head of an agency that couldn’t stop the Boston Marathon bombing after having been handed the cellphone numbers of the terrorists by Russian intelligence. NSA defenders used to argue for more and more data collection. On Christmas Day, The Wall Street Journal revealed that William Binney, a 30-year NSA executive who actually designed much of the software that provides the foundation for NSA’s current data sweeps, thinks that the agency is collecting so much information it cannot possibly do its job. Mr. Binney and others had back in the 1990s argued for more limited data collection with privacy safeguards. Their plans were rejected, and they left the agency in disgust when the more extensive collection scheme was put into place after 9/11, only to face years of harassment from their former bosses.

Now Mr. Binney claims the NSA is “drowning in useless data” making it harder, rather than easier, to track down terrorists and providing a constant temptation to violate individual rights in the name of national security. The Journal also noted that last year, several NSA senior analysts actually asked their superiors for permission to scale back on data collection because they are unable to process or analyze everything the agency is scooping up.

NSA defenders used to argue for more and more data collection on the grounds that the haystack in which they were searching for the needle had to be big enough to give them some assurance that the needle was in there. Now it seems the haystack is getting so big that it is rapidly becoming unsearchable for all practical purposes.

Early last year, retired Marine Col. Oliver North was asked about the NSA surveillance program. His audience may have expected the old Marine to give the same knee-jerk defense they were getting from folks like Mr. King, but he didn’t. Instead, Mr. North said he found it troubling that the government would treat constitutional guarantees so cavalierly, especially since it was becoming clear that collecting everything about everybody was the rough equivalent of collecting nothing useable on anyone. The haystack was getting so big, he argued, that you couldn’t find the needle in it even if your life depended on it.

Sometimes, Marines are smarter than federal judges.

David A. Keene is opinion editor of The Washington Times.

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