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Federal Judge Rules NSA's Metadata-Snooping Is Constitutional

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U.S. District Judge William H. Pauley III ruled on December 27th that the massive dragnet NSA electronic surveillance program is not just necessary but also Constitutional.

This ruling,   "ACLU v. Clapper,"   held that in the post-9/11 world, there can be no effective national security under the conditions that the American Civil Liberties Union (and many others) have claimed to be required by the 4th Amendment's privacy provision.

From http://commons.wikimedia.org/wiki/File:EFF_version_of_NSA_logo.jpg: EFF version of NSA logo
EFF version of NSA logo
(image by Wikipedia)


Judge Pauley (who was appointed by Democratic President Bill Clinton) said that the only way for the nation to have any realistic hope of avoiding another such terrorist attack is to "find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data. This blunt tool only works because it collects everything." He noted that if the database that is available to the Federal Government does not include "everything," then the information that it does include will not be able to be understood, because who is sending and receiving information from whom will not be known; a court order (and substantial delay) will be necessary, even while someone might be carrying a bomb to its intended destination.

Judge Pauley also said: "The natural tension between protecting the nation and preserving liberty is squarely presented by the Government's bulk telephony metadata collection program," in which the senders and recipients of each communication within the system are both indicated, and both identities are immediately accessible to the Government, without there being a requirement for an individual court order, in order for that metadata to become known to the Government. He went on: "Edward Snowden's unauthorized disclosure of Foreign Intelligence Surveillance Court ('FISC') orders has provoked a public debate and this litigation. While robust discussions are underway 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."

Judge Pauley cited prior rulings by the U.S. Supreme Court as the basis for his finding that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties." ( Smith v. Maryland , 1979.) Consequently, one's use of the third-party telephone company to transmit and receive calls is automatically to make this metadata publicly available. "The Court found that telephone customers have no subjective expectation of privacy in the numbers they dial because they convey that information to the telephone company knowing that the company has facilities to make permanent records."

Judge Pauley then dealt with the ACLU's argument that if the Government has access to these metadata, it can "reveal a person's religion, political associations," etc. Judge Pauley noted that "that is at least three inflections from the Government's bulk metadata collection," and that "The ACLU's pleading reveals a fundamental misapprehension about ownership of telephony metadata. ... The business records created by Verizon are not 'Plaintiffs' call records.' Those records are created and maintained by the telecommunications provider."

Judge Pauley likewise ruled that the ACLU's citation of the "freedom of association" provision in the First Amendment, against this program, is wrong. He concluded that "the Government's argument is well-supported" in prior rulings by the U.S. Supreme Court pertaining to this provision, one ( U.S. v. Alvarez , 2012) being quite recent (and thus presumably unexceptionable to the current Justices).

Pauley basically said that the ACLU's position was based upon "speculative fear" that the Government would use its access to this information for purposes of political retaliation, which actually   would   constitute Constitutional violations; but he said that "[S]uch a fear is insufficient," on its own, to make the Government's access to these metadata unconstitutional.

He went on to say: "Here, the balance of the equities and the public interest tilt firmly in favor of the Government's position." In this, he cited a 2010 Supreme Court ruling,   Holder v. Humanitarian Law Project , which stated that, "Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the highest order."

He furthermore cited instances to show that, "The effectiveness of bulk telephony metadata collection cannot be seriously disputed."

He finally concluded: "There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks."

His ruling constitutes a clean sweep for the Obama Administration, but it will likely be appealed, and the ultimate decision will then come from the U.S. Supreme Court itself.

However, Judge Pauley's ruling comes down against every argument from the ACLU, and relies primarily upon statements from the U.S. Supreme court; so, there is very little, if any, likelihood that what the Obama Administration has been doing in this regard will be found to be unconstitutional, or in any other way in violation of the law.

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Investigative historian Eric Zuesse is the author, most recently, of   They're Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010 ,   and of   CHRIST'S VENTRILOQUISTS: The Event that Created Christianity .

 

Investigative historian Eric Zuesse is the author, most recently, of  They're Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010,  and of  CHRIST'S VENTRILOQUISTS: The Event that (more...)
 

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Just weeks earlier, on December 1... by Eric Zuesse on Saturday, Dec 28, 2013 at 10:49:11 AM
DOH!!! How can this SURPRISE anyone?? They also ... by Paul Repstock on Saturday, Dec 28, 2013 at 11:19:02 AM
Read the decision before (not after) judging it.Th... by Eric Zuesse on Saturday, Dec 28, 2013 at 12:05:02 PM
As you know I often agree with you, but now I find... by BFalcon on Saturday, Dec 28, 2013 at 12:33:32 PM
Although I agree with you that "Using the number t... by Eric Zuesse on Saturday, Dec 28, 2013 at 1:30:15 PM
I fully agree and believe that president Obama and... by BFalcon on Saturday, Dec 28, 2013 at 4:29:14 PM
Re. your "I would argue that most of the relevant ... by Eric Zuesse on Saturday, Dec 28, 2013 at 6:12:54 PM
I would think that planting an experienced double ... by BFalcon on Saturday, Dec 28, 2013 at 10:38:14 PM
Look are you a constitutional lawyer? Or even a la... by Art Costa on Saturday, Dec 28, 2013 at 1:34:10 PM
I am not a lawyer, but I can read and understand l... by Eric Zuesse on Saturday, Dec 28, 2013 at 2:39:04 PM
No, I think the 4th Amendment does not require muc... by Art Costa on Saturday, Dec 28, 2013 at 7:24:50 PM
It's hard for me to understand Judge Pauley's reas... by Scott Baker on Sunday, Dec 29, 2013 at 3:31:45 AM
The question revolves around meaning of the word, ... by Charles Roll on Sunday, Dec 29, 2013 at 10:13:50 PM
Can anyone help with tapping the kind judge's phon... by Daniel Geery on Saturday, Dec 28, 2013 at 1:24:01 PM
This article has nothing to do with the constituti... by Art Costa on Saturday, Dec 28, 2013 at 1:28:25 PM
Although the Constitution can be interpreted to me... by Blaine Kinsey on Saturday, Dec 28, 2013 at 2:08:01 PM
Blaine, you failed to click on the link to Judge P... by Eric Zuesse on Saturday, Dec 28, 2013 at 2:26:26 PM
I have read Judge Pauley's decision, but you and J... by Blaine Kinsey on Saturday, Dec 28, 2013 at 3:50:06 PM
Your statement that "Judge Pauley cited examples o... by Eric Zuesse on Saturday, Dec 28, 2013 at 4:24:00 PM
Your weak rebuttal is false; apparently you did no... by Blaine Kinsey on Saturday, Dec 28, 2013 at 4:36:47 PM
I have just re-read pages 48-49; what there are yo... by Eric Zuesse on Saturday, Dec 28, 2013 at 5:46:58 PM
You are clearly contradicted by the express langua... by Blaine Kinsey on Saturday, Dec 28, 2013 at 8:13:36 PM
Here is "the express language in the final paragra... by Eric Zuesse on Saturday, Dec 28, 2013 at 9:40:43 PM
Only someone such as you, whose comments in respon... by Blaine Kinsey on Saturday, Dec 28, 2013 at 10:09:37 PM
As I said to you before:Your statement that "Judge... by Eric Zuesse on Saturday, Dec 28, 2013 at 11:11:08 PM
Thank you for reinforcing that you do not know how... by Blaine Kinsey on Saturday, Dec 28, 2013 at 11:46:01 PM
In your comments in response to me, you have attem... by Blaine Kinsey on Sunday, Dec 29, 2013 at 8:24:04 AM
ADDENDUM TO MY PREVIOUS REPLY TO YOUR LAST COMMENT... by Blaine Kinsey on Saturday, Dec 28, 2013 at 10:18:39 PM
"Judge Pauley states that the government has not a... by Charles Roll on Sunday, Dec 29, 2013 at 10:35:41 PM
My own opinion is that Pauley should not even be a... by Philip Dennany on Saturday, Dec 28, 2013 at 5:58:12 PM
If you have actually done research on that, then p... by Eric Zuesse on Saturday, Dec 28, 2013 at 6:17:52 PM
Mass surveillance is not ok. It alters society. It... by Bob Davey on Saturday, Dec 28, 2013 at 8:17:07 PM
Aw, c'mon people, the way I understand it, Federal... by Eddy Schmid on Saturday, Dec 28, 2013 at 11:55:00 PM
I does not matter how many people (Judges), voice ... by Paul Repstock on Sunday, Dec 29, 2013 at 9:17:47 AM
Notice...nowhere in Judge Pauley's " 9/11 Changed ... by Truth Will Prevail on Sunday, Dec 29, 2013 at 10:14:53 AM
Are you suggesting that Al Qaeda doesn't exist, or... by Eric Zuesse on Sunday, Dec 29, 2013 at 10:26:19 AM
Eric Zuesse, you are sadly misinformed and buying ... by Bill Johnson on Sunday, Dec 29, 2013 at 11:18:56 AM
There is so much more-sound evidence that you simp... by Eric Zuesse on Sunday, Dec 29, 2013 at 11:47:21 AM
I'm so happy to see the ferocious defence of priva... by Paul Repstock on Sunday, Dec 29, 2013 at 12:48:27 PM
We so badly need a conclusive 9/11 investigation s... by Paul Repstock on Sunday, Dec 29, 2013 at 12:59:24 PM
If any of you want to see the evidence I am referi... by Paul Repstock on Sunday, Dec 29, 2013 at 8:33:58 PM
This is in reply to all here who oppose the Govern... by Eric Zuesse on Sunday, Dec 29, 2013 at 3:36:53 PM
This thread has digressed from a discussion of Jud... by Paul Repstock on Sunday, Dec 29, 2013 at 7:53:34 PM
"Innocent until proven guilty" isn't even relevant... by Eric Zuesse on Sunday, Dec 29, 2013 at 8:56:21 PM
Oh?? How about probable cause??  ... by Paul Repstock on Sunday, Dec 29, 2013 at 9:07:11 PM
Probable cause is likewise prior to the courtroom ... by Eric Zuesse on Sunday, Dec 29, 2013 at 9:30:37 PM
Do you wear a gauze mask to protect against the co... by Paul Repstock on Sunday, Dec 29, 2013 at 9:44:33 PM
The right of the people to be secure in their pers... by Charles Roll on Monday, Dec 30, 2013 at 6:08:13 PM
For those who are vehemently arguing against the r... by Doc McCoy on Sunday, Dec 29, 2013 at 11:07:56 PM
I very much fear that you are correct, specially s... by Paul Repstock on Monday, Dec 30, 2013 at 2:32:21 AM
YES! I did say "a Global slavery". This is not ju... by Paul Repstock on Monday, Dec 30, 2013 at 2:59:54 AM
The answer to your suggestion is found in the begi... by Doc McCoy on Monday, Dec 30, 2013 at 3:30:32 AM
Information is not power; the best-informed people... by Eric Zuesse on Monday, Dec 30, 2013 at 6:09:39 AM
Information is not power; the best-informed people... by Charles Roll on Monday, Dec 30, 2013 at 4:11:32 PM
Continuing on issues of concentration of money and... by Charles Roll on Monday, Dec 30, 2013 at 5:33:41 PM
In the case of wealth, as distinguished from money... by Charles Roll on Monday, Dec 30, 2013 at 5:36:05 PM
The metadata collection allows them to sift throug... by Charles Roll on Monday, Dec 30, 2013 at 3:51:27 PM
The founding fathers never could have, nor did the... by Charles Roll on Monday, Dec 30, 2013 at 5:50:59 PM
You may have missed article by Pierce Nahigyan, pu... by Charles Roll on Monday, Dec 30, 2013 at 6:24:13 PM
That has been my contention from the start, " It (... by Paul Repstock on Tuesday, Dec 31, 2013 at 1:12:22 AM
It's awe-inspiring just to contemplate the storage... by Charles Roll on Tuesday, Dec 31, 2013 at 2:35:33 AM