The judge says the government learned from its
mistakes on 9/11.
By ASSOCIATED PRESS | 12/27/13 12:01 PM EST Updated:
12/27/13 2:49 PM EST
NEW YORK — Citing the Sept. 11 attacks, a federal
judge on Friday found that the National Security Agency's bulk collection of
millions of Americans' telephone records is legal, a valuable part of the
nation's arsenal to counter the threat of terrorism and "only works
because it collects everything."
U.S. District Judge William Pauley said in a written
opinion that the program lets the government connect fragmented and fleeting
communications and "represents the government's counter-punch" to the
al-Qaida's terror network's use of technology to operate decentralized and plot
international terrorist attacks remotely.
"This blunt tool only works because it collects
everything," Pauley said. "The collection is broad, but the scope of
counterterrorism investigations is unprecedented."
Pauley's decision contrasts with a ruling earlier this
month by U.S. District Court Judge Richard Leon, who granted a preliminary
injunction against the collecting of phone records of two men who had challenged
the program. The Washington, D.C. jurist said the program likely violates the
U.S. Constitution's ban on unreasonable search. The judge has since stayed the
effect of his ruling, pending a government appeal.
Pauley said the mass collection of phone data
"significantly increases the NSA's capability to detect the faintest
patterns left behind by individuals affiliated with foreign terrorist
organizations. Armed with all the metadata, NSA can draw connections it might
otherwise never be able to find."
He added: "As the Sept. 11 attacks demonstrate,
the cost of missing such a threat can be horrific."
Pauley said the 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-Qaida
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-Qaida."
The judge said the NSA intercepted seven calls made by
one of the Sept. 11 hijackers in San Diego prior to the attacks, but mistakenly
concluded that he was overseas because it lacked the kind of information it can
now collect.
Still, Pauley said such a program, if unchecked,
"imperils the civil liberties of every citizen" and he noted the
lively debate about the subject across the nation, in Congress and at the White
House
"The question for this court is whether the
government's bulk telephony metadata program is lawful. This court finds it is.
But the question of whether that program should be conducted is for the other
two coordinate branches of government to decide," he said.
A week ago, President Barack Obama said there may be
ways of changing the program so that is has sufficient oversight and
transparency.
In ruling, Pauley cited the emergency of the program
after 19 hijackers took over four planes in the 2001 attacks, flying two into
the twin towers of the World Trade Center, one into the Pentagon and a fourth
into a Pennsylvania field as passengers tried to take back the aircraft.
"The government learned from its mistake and
adapted to confront a new enemy: a terror network capable of orchestrating attacks
across the world. It launched a number of counter-measures, including a bulk
telephony metadata collection program — a wide net that could find and isolate
gossamer contacts among suspected terrorists in an ocean of seemingly
disconnected data," he said.
Pauley dismissed a lawsuit brought by the American
Civil Liberties Union, which promised to appeal to the 2nd U.S. Circuit Court
of Appeals in Manhattan.
"We're obviously very disappointed," said
Brett Max Kaufman, an attorney with the ACLU's National Security Project.
"This mass call tracking program constitutes a serious threat to
Americans' privacy and we think Judge Pauley is wrong in concluding
otherwise."
Justice Department spokesman Peter Carr said: "We
are pleased the court found the NSA's bulk telephony metadata collection
program to be lawful."
In arguments before Pauley last month, an ACLU lawyer
had argued that the government's interpretation of its authority under the
Patriot Act was so broad that it could justify the mass collection of
financial, health and even library records of innocent Americans without their
knowledge, including whether they had used a telephone sex hotline,
contemplated suicide, been addicted to gambling or drugs or supported political
causes. A government lawyer had countered that counterterrorism investigators
wouldn't find most personal information useful.
Pauley said there were safeguards in place, including
the fact the NSA cannot query the phone database it collects without legal
justification and is limited in how much it can learn. He also noted "the
government repudiates any notion that it conducts the type of data mining the
ACLU warns about in its parade of horribles."
The ACLU sued earlier this year after former NSA
analyst Edward Snowden leaked details of the secret programs that critics say
violate privacy rights. The NSA-run programs pick up millions of telephone and
Internet records that are routed through American networks each day.
Pauley said the fact that the ACLU would never have
learned about an order authorizing collection of telephony metadata related to
its telephone numbers but for Snowden's disclosures added "another level
of absurdity in this case."
"It cannot possibly be that lawbreaking conduct
by a government contractor that reveals state secrets — including the means and
methods of intelligence gathering — could frustrate Congress's intent. To hold
otherwise would spawn mischief," he wrote.
Pauley also rejected the ACLU's argument that the
phone data collection program is too broad and contains too much irrelevant
information.
"That argument has no traction here. Because
without all the data points, the government cannot be certain it connected the
pertinent ones," he said. "Here, there is no way for the government
to know which particle of telephony metadata will lead to useful
counterterrorism information. When that is the case, courts routinely authorize
large-scale collections of information, even if most of it will not directly
bear on the investigation."
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