Judge Pauley decided to ignore several compelling US Constitutional issues and applications of its provisions to the NSA case. He chose to avoid 4th Amendment prohibitions on unreasonable government searches of private papers and effects. As Professor Juan Cole recently reminded us, the 14th Amendment was the basis for a recent Supreme Court ruling forbidding law enforcement from using GPS tracking without a warrant. The courts decided that following someone around 24/7 as a "search" because such intensive monitoring of a person's movements goes beyond just glimpsing the individual in public. NSA collection of metadata from cell phones track individuals just as a GPS devices do.
Other applicable US Constitutional provisions ignored by Judge Pauley include the 1789 Federalist promoted 9th Amendment, which a majority of the Founding Fathers wanted as guarantees that "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The 9th Amendment is clearly designed to block the government from constraining people's private behavior. As Cole points out, not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are also protected as a free people from government intrusions.
There are additional provisions in the constitution and in the history of court rulings that prescribe privacy for individuals from government intrusion. In fact, although "privacy" is not mentioned in the US constitution, the Supreme Court found in Connecticut v. Griswold that American citizens had a constitutional right to use birth control and that the state could not arbitrarily come into the bedroom and prohibit it. Some of the justices referred to the 9th Amendment, which says "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." That is, the government can't just wake up in the morning and decide to constrain people's private behavior. Not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are protected in general as a free people from government intrusions.
Judge Pauley also ignored the relevant application of the 14th Amendment. In Griswold v. Connecticut, 381 U.S. 497 (1965) a landmark case in which the Supreme Court ruled that the Constitution protected a right of privacy, justices referenced the due process clause of the 14th amendment, which commands that "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The late great Justice William O. Douglas argued that the Bill of Right's specific guarantees have "penumbras," created by "emanations from these guarantees and that these penumbras help give the Bill of Rights life relevance to today's struggle to protect our civil rights. It was Douglas' interpretation of the US Constitution that, the "spirit" of the First Amendment (free speech), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment, creates a general right to privacy that cannot be unduly infringed." In his view there exists as part of the US Constitution a penumbra of privacy.
Judge Pauley ignored these and other Constitutional applications in order to uphold the NSA informational gathering project in spite of the fact that the NSA, every minute for the past 7 years and until today, is abridging the privileges and immunities of a free citizenry. They are depriving us of liberty without due process of law, for the reason that they have failed to obtain a judicial warrant based on grounds of specific evidence of wrong-doing.
Judge Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation. "The government does not 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 in nature," he wrote.
Where these conflicting US Constitutional decisions leave the American public concerned with civil liberties and the disappearance of privacy is in a profound quandary with respect to the issues raised by Edward Snowden. Snowden described in his Christmas address, carried by British Channel 4 and widely aired on the internet the legitimate concern of all people who values individual liberty and privacy: A child born today might "never know what it means to have a private moment to them, an unrecorded, unanalyzed thought." People walk around with a tracking device in their pockets, he noted, and as we now know, the NSA is collecting the metadata of those phones, which includes location information.
With words likely to become part of Law School curriculum, Mr. Snowden said that "this disappearance of privacy is important because privacy is what allows us to determine who we are and who we want to be."
Franklin Lamb is a former Democratic National Committee Member representing Oregon. He volunteers with the Sabra-Shatila Scholarship Program ( sssp-lb.org )
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