A Judicial Difference of Opinion; Two Judges, Two Views of NSA Data Collection

By Keene, David A. | The Washington Times (Washington, DC), December 31, 2013 | Go to article overview

A Judicial Difference of Opinion; Two Judges, Two Views of NSA Data Collection


Keene, David A., The Washington Times (Washington, DC)


Byline: David A. Keene, THE WASHINGTON TIMES

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. …

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