Dueling Rulings On The NSA

Judge Richard Leon and Judge William Pauley disagree about legality of the metadata collection program. Andrew Cohen sees the rulings as an example of the subjectivity of law:

Although the two rulings involve different plaintiffs, Judge Pauley’s opinion reads as a pointed response to Judge Leon’s ruling of 10 days earlier. In fact, I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws. And that, of course, says a great deal about the nature of the NSA’s program itself and its symbolic role in the conflict America faces as it teeters back and forth between privacy and security.

Taken together, these two manifestos represent the best arguments either side so far has been able to muster. If you trust the government, Judge Pauley’s the guy for you. If you don’t, Judge Leon makes more sense. That two judges would hold such contrasting worldviews is either alarming (if you believe the law can be evenly applied) or comforting (if you believe that each individual judge ought to be free to express his conscience). In any event, taken together, the two opinions say a lot about nature of legal analysis. The judge who gets overturned on appeal here won’t necessarily be wrong—he’ll just not have the votes on appeal supporting his particular view of the law and the facts. In the end, you see, there is no central truth in these great constitutional cases that rest at the core of government authority; there is just the exercise of judicial power.

Amy Davidson is alarmed at the wide berth Pauley seems to grant the administration:

[I]f Pauley’s opinion offers a single instruction for the N.S.A, it is this: go big.

The more people whose data was swept up, the less this judge apparently thinks he has to say about it. Reading his fifty-four-page opinion, one wonders whether, if the intelligence community could only find a way to violate every single American’s rights, and tell a story about how that protected them, he would look around and find that no one had been hurt. “This blunt tool only works because it collects everything,” he writes. While briefly acknowledging that “unchecked” it could violate civil liberties, he is quite satisfied with the checking in place now. To let the A.C.L.U. challenge the N.S.A.’s collection of its phone records on statutory grounds (that is, by arguing that the Patriot Act was being misused) would be “an absurdity”—absurd, to his mind, because Congress didn’t intend for ordinary Americans to know about this, and because there are so very many of them: “It would also—because of the scope of the program—allow virtually any telephone subscriber to challenge a section 215 order.”

Justin Elliott notices that the evidence Pauley cited from the 9/11 Commission Report isn’t actually in the report:

In his decision, Pauley writes: “The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture [Khalid] al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.” As his source, the judge writes in a footnote, “See generally, The 9/11 Commission Report.” In fact, the 9/11 Commission report does not detail the NSA’s intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, “We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.” To this day, some details related to the incident and the NSA’s eavesdropping have never been aired publicly. And some experts told us that even before 9/11 — and before the creation of the metadata surveillance program — the NSA did have the ability to track the origins of the phone calls, but simply failed to do so.

Peter Margulies, on the other hand, supports Pauley’s ruling, pointing out that Congress had to have known what it was doing when it authorized and reauthorized the PATRIOT Act:

As Judge Pauley indicates, Congress clearly understood the threat posed by Al Qaeda’s ability to develop lethal plots in a “decentralized” fashion.  Neutralizing Al Qaeda’s asymmetric advantage, Judge Pauley finds, requires that the government have the ability to connect “fragmented and fleeting communications.”  Without the “counter-punch” supplied by metadata collection, the government risks ceding the long-term initiative to Al Qaeda and associated forces.  Allowing the concept of relevance to evolve with the shifting terrorist threat was an eminently sensible strategy for Congress in 2006, when it added the relevance standard.

As Judge Pauley points out, any doubt about Congress’s calculus is extinguished by Congress’s reauthorization of Section 215 in 2010 and 2011, when members of Congress had the twin benefits of, (1) access to documents that described the metadata program, and, (2) the public criticism of the metadata program by senators Wyden and Udall, who warned (in Wyden’s words) of the “discrepancy between what most Americans believe is legal and what the government is actually doing under the Patriot Act.” Judge Pauley asserts that these two sources would place any legislator not in a coma on notice that the NSA and the FISC had broadly interpreted the statutory relevance standard.  Indeed, Judge Pauley describes as “curious” Wisconsin representative James Sensenbrenner’s claim that he had no inkling of the metadata program before the Snowden disclosures.  Judge Pauley bases his skepticism on Sensenbrenner’s receipt, as a Judiciary Committee member, of summaries of FISC decisions, the decisions themselves, and access to government briefings and white papers.  Congress could not have ensured knowledge of the metadata program by the American public, Pauley explains, without disclosing the program’s operation to our adversaries.  Congress reasonably concluded, Pauley intimates, that this disclosure posed an unacceptable risk to national security.

Jeff Jarvis wants to change the terms of the debate:

I see some danger in arguing the case as a matter of privacy because I fear that could have serious impact on our concept of knowledge, of what is allowed to be known and thus of freedom of speech. Instead, I think this is an argument about authority – not so much what government (or anyone else) is allowed to know but what government, holding unique powers, is allowed to do with what it knows. … So what we should be restricting – with legislation and open oversight by courts, Congress, the press, and ultimately the people – is the NSA’s ability to seek and use information against anyone (citizen or foreigner) without documented suspicion of a crime, due process, and a legal warrant.

Meanwhile, the latest revelations of the NSA’s info-sucking operation include Microsoft crash reports:

One example of the sheer creativity with which the TAO [Office of Tailored Access Operations] spies approach their work can be seen in a hacking method they use that exploits the error-proneness of Microsoft’s Windows. Every user of the operating system is familiar with the annoying window that occasionally pops up on screen when an internal problem is detected, an automatic message that prompts the user to report the bug to the manufacturer and to restart the program. These crash reports offer TAO specialists a welcome opportunity to spy on computers. … The automated crash reports are a “neat way” to gain “passive access” to a machine, the [NSA internal] presentation continues. Passive access means that, initially, only data the computer sends out into the Internet is captured and saved, but the computer itself is not yet manipulated. Still, even this passive access to error messages provides valuable insights into problems with a targeted person’s computer and, thus, information on security holes that might be exploitable for planting malware or spyware on the unwitting victim’s computer.

Although the method appears to have little importance in practical terms, the NSA’s agents still seem to enjoy it because it allows them to have a bit of a laugh at the expense of the Seattle-based software giant. In one internal graphic, they replaced the text of Microsoft’s original error message with one of their own reading, “This information may be intercepted by a foreign sigint [“signals intelligence] system to gather detailed information and better exploit your machine.”

Much more from Der Spiegel here.