December 27 update: Earlier today a Federal judge in New York apparently ruled that the NSA spying program that is systematically collecting the phone records of all Americans is lawful. Judge William H. Pauley III of the United States District Court for the Southern District of New York granted a motion filed by the Federal government to dismiss a challenge to the program brought by the American Civil Liberties Union.
In doing so Pauley created a conflict among lower Federal courts, increasing the likelihood that the issue will be resolved by the Supreme Court at some point in the future. The ruling is a setback, no doubt about it, and it’s hard to have a lot of confidence in the Supreme Court as currently constituted.
But like a famous politician once said, no matter how thin Judge Pauley slices it, it’s still baloney and particularly dangerous baloney at that. I could be wrong, but I don’t think that the American people have become so cowardly that they’ll put up with this kind of nonsense indefinitely. Only time will tell, I suppose, and it’ll be important to see where Obama comes down on all of this in January.
December 20 update: Some of you may be wondering why I haven’t had anything much to say about the report released earlier this week by the Review Group on Intelligence and Communications Technologies, the outside panel appointed by President Obama to make recommendations regarding the government’s surveillance policies.
The main reason for my silence is that the report is a long one, over 300 pages, with many recommendations. What with everything else on my plate, it’s been slow going for me.
Having said that, I have to confess I have some concerns about the substance of the report or perhaps the lack thereof would be a better way of putting it.
More importantly, I’m concerned that Obama hasn’t had much to say about the report at all. It seems like he’s looking for a way to weaken a report that may not be all that strong to begin with. The New York Times has an excellent editorial on this, one well worth reading.
For the moment then, I’m withholding judgment. But I think this country would be better served in the long run if Judge Leon’s decision is upheld. Starting with the Fourth Amendment, we need to go back to ground zero and rethink these issues from the ground up.
In any event, whatever else you might think, I believe we’re only at the beginning stages of what may prove to be a long and protracted struggle.
We have some good news today for a change. Judge Richard J. Leon of the Federal District Court for the District of Columbia ruled today that the National Security Agency program that is systematically keeping records of the phone calls of all Americans most likely violates the Constitution. Leon was appointed to the Court in 2002 by President George W. Bush.
In his 68-page ruling, Leon called the program’s technology “almost Orwellian” and suggested that James Madison, one of the authors of the Constitution, would be “aghast” to learn that the government was encroaching on liberty in this way.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” Judge Leon wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”
Judge Leon also emphasized that he was unpersuaded by government claims that the program served the public interest, pointedly noting that the government failed to cite “a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.”
The ruling is subject to appeal, of course, and we can expect the Obama administration to do so. Neither the President nor his lawyers seem to understand that no one should read our letters, track our phone calls, monitor our internet usage, and otherwise collect and store our personal information absent a reasonable suspicion justified to a non-secret court that we have committed or are in the process of committing a crime.
The idea of building a dossier on all innocent Americans just on the suspicion that they might get involved in future criminal activity is blatantly unconstitutional, at least in my opinion, and apparently in the opinion of one District Court judge.
Thanks Judge Leon!