Ruling In Favor Of NSA's Program Relied On Claims In 9/11 Report That Aren't Actually In That Report

from the judicial-misconduct dept

Mon, Dec 30th 2013 1:37pm — Mike Masnick

The more people look at the ruling last week by Judge William Pauley saying that the NSA's bulk metadata collection is legal, the more perplexed they become. We noted multiple problems with the ruling last week, but at almost every turn is evidence that Judge Pauley not only came into the court with his decision already set, but that he took the government's claims at face value, even when they were flat-out factually incorrect -- and which could have been easily checked. We already noted that Pauley's argument that 9/11 could have been prevented with such a metadata collection had been widely debunked, but it's worse than that. Pauley's ruling cites the 9/11 Commission report for this particular argument. There's a big problem with that. The 9/11 Commission report doesn't even mention the story that Judge Pauley claims is in the report.

As we've discussed in the past, the NSA and its defenders keep pointing to the story of Khalid al-Mihdhar, a terrorist who was in San Diego and made a call to a known Al Qaeda safe house in Yemen. Except, as was widely reported, the intelligence community had collected all the necessary info and was even intercepting calls between the US and the safe house. The problems was that the CIA "lost" al-Mihdhar, didn't tell the FBI that he was in the US (even though it knew he'd received a Visa) and no one put him on a watch list. None of that would have changed with the metadata collection.

However, as Pro Publica notes, not only does Judge Pauley ignore all of this, he claims the 9/11 Commission report talks about the NSA being unable to "capture al-Mihdhar's telephone number identifier" -- but that's not true:

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.”

So when you have a judge using this as a key part of his ruling, and it appears that he simply did not read the report he's citing, but rather accepted the government's misrepresentation of the report, it should call into question what Judge Pauley was doing with this case. Others are noticing this same thing. The NY Times has an editorial, noting that Pauley's reasoning is "perplexing" in that it assumes that the government never breaks the law:

Judge Pauley's opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law and quickly self-corrects when it does not. For example, Judge Pauley said the N.S.A.'s director, Gen. Keith Alexander, was being "crystal clear" when he responded to charges that the agency was mining data from phone calls by saying: "We're not authorized to do it. We aren't doing it."

That shows an alarming lack of skepticism, particularly in light of the testimony of James Clapper Jr., the director of national intelligence, who falsely told the Senate Intelligence Committee in March that the N.S.A. was not collecting any type of data at all on hundreds of millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is "no evidence" that the government has used the phone data for anything other than terrorism investigations. An inspector general's report in September revealed at least a dozen instances in which government employees used the databases for personal purposes.

Over at the New Yorker, Amy Davidson, goes even deeper in exploring the differences between Judge Pauley's ruling and Judge Leon's ruling (which found the NSA's metadata collection unconstitutional), and has pointed out multiple other "perplexing" elements in Pauley's ruling -- including the idea that the more completely the NSA spies on Americans, the more legal the program would be under his bizarre legal interpretation.

And yet if 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.

And yet, "collect everything" is exactly what the 4th Amendment was designed to not allow. It was put in place to end the concept of general warrants for the collection of everything. It's this very concept of "collect everything" that is why Judge Leon noted that the "third party doctrine" as established in Smith v. Maryland makes no sense to apply to this bulk metadata collection.

Furthermore, Davidson also notes how Pauley uncritically accepts the feds' blatantly misleading spin that even with all the metadata collection only a very small number of people are spied upon. Judge Leon actually breaks it down and does the math, while Pauley doesn't bother:

The contrast can be seen in the two judges' responses to the way the government queries its database of phone records—those of almost every American. It starts with a "seed"—maybe a phone number of someone it suspects (and only suspects) is connected to a foreign terrorist group. It then makes three "hops": looks at all the numbers that the seed number has called or been called by, each number that those have been connected to, and each that those have been connected to. Leon does some calculations and sees that the number of phone numbers gets big very quickly (if you call a hundred friends, and they each call a hundred friends…). They also get attenuated: he cites the example of a suspect calling a pizza place, and the way every other pizza orderer is then inveigled. (I wrote about this “Domino's hypothetical” when Judge Leon's ruling was issued.) But just as interesting was Leon's response to the government's note that it has done this with three hundred seeds, yielding a number of American phone records “substantially larger than 300, but is still a very small percentage of the total volume of metadata records.”

The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context…. It belabors the obvious to note that even a few million phone numbers is “a very small percentage of the total volume of metadata records” if the Government has collected metadata records on hundreds of millions of phone numbers.

Pauley, looking at the same statement, repeats it primly and uncritically twice: “only a ‘very small percentage of metadata records…’ ” He is just relieved that terrorists, or those connected to them even by “filaments,” might be found. (Last week, a Presidential review panel found that the program was not, in fact, all that useful.)

So there are huge problems with Pauley's decision. Not only does he quote a report that doesn't say what he claims it says, he further supports his argument by accepting a claim that another judge quickly showed to be clearly false just by doing some simple math. So far, we've got Judge Pauley failing to actually read or do math but simply accepting the government's claims of what the report and the math say, when anyone who's actually looked at either know the government is not being honest.

You would think that a judge would actually review the source material, rather than accept one party's misrepresentations. Unfortunately, Judge Pauley appears to have failed in his job to do the most basic checking of what he was told. And, because of that, we now have a horrible ruling on the books.

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Filed Under: 9/11 commission, bulk metadata collection, khalid al-mihdhar, nsa, patriot act, section 215, surveillance, william pauley

28 Comments

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TasMot (profile), 30 Dec 2013 @ 1:50pm

There is One Positive out of this....
Normally (as I understand it anyway), the Supreme Court only takes a case when there are mis-matched rulings. Now there is one. To maybe help out, one ruling (the one we like) is a very detailed well reasoned decision which lays out the details with source references and a detailed logic path. The other ruling (the one we don't like - the one this article is about), is a slip-shod justification that doesn't do any fact checking and just accepts one side's opinion about everything and doesn't check the references (especially about the made up stuff). Together these two decisions should get the Supreme Courts notice and unless they are having a very "off day" the fully reasoned and well documented decision should win out.
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TJ, 30 Dec 2013 @ 1:51pm

Sounds like the NSA is using his porn viewing habits against him.
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Capt ICE Enforcer, 30 Dec 2013 @ 1:55pm

NSA
Thank God the NSA has helped this judge save the lives of our children.
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Mike Masnick (profile), 30 Dec 2013 @ 1:55pm

Re: There is One Positive out of this....
Normally (as I understand it anyway), the Supreme Court only takes a case when there are mis-matched rulings

Not "only," but frequently that's the case. But there's a big middle step missing here. The SC will generally do that if there's a mismatch ("circuit split") between rulings at the appeals court level. Both of these rulings are at the district court level, so we'll almost certainly have to wait for the appeals -- and those appeals may not show any split when they come down.
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Anonymous Coward, 30 Dec 2013 @ 1:57pm

Re:
"Sounds like the NSA is using his porn viewing habits against him."

That's just what I was thinking. I wonder if they've got anything on any of the Supreme Court Justices. I guess we can tell by watching the upcoming responses of the individual justices to see which ones may have been compromised.
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Jay (profile), 30 Dec 2013 @ 2:02pm

Separation of church and state?
I am EXTREMELY worried about rulings like this...

Not only is it confirmation bias, but it just seems like a creationist method of evidence gathering where you find the evidence necessary to confirm your convictions.

For a judge to make such a ruling, particularly in New York, it may be relevant to look at his past to see how he comes to his conclusions.

I know that the NSA is collecting information and maybe this judge has some dirt. But to look at this case and try to point out that it may possibly be legal from just one view of the government is an immense foley and downright scary.

It doesn't ring to a person that is able to understand the separation of church and state. His belief is that the government can do no wrong when it comes to its interactions with the public.

How could anyone trust such a judge?
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Anonymous Coward, 30 Dec 2013 @ 2:19pm

During the first American Revolution, they would have considered Judge Pauley a turncoat.
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Anonymous Coward, 30 Dec 2013 @ 2:26pm

come on guys! he was primed to agree with the NSA, simply because one judge had already ruled against them! the problem was, they couldn't find anyone soon enough who had the sense to make sure that the bullshit he came out with was believable bullshit. i dont know if there will be an appeal by ACLU but i hope so! he definitely deserves to be cited for this decision, hopefully worse. like Sheindlin was in a NY case, for no apparent, legitimate reason, Pauley definitely should be at least on par with the punishment there! and whoever it was that 'encouraged' him to arrive at the half-baked decisions he did, should be tried for treason more than Snowden ever should be!!
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Anonymous Coward, 30 Dec 2013 @ 2:31pm

Re:
A lot of these people need to be tried for treason and then taken out and hung en mass.
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Anonymous Coward, 30 Dec 2013 @ 2:36pm

Re:
"the problem was, they couldn't find anyone soon enough who had the sense to make sure that the bullshit he came out with was believable bullshit."

It's not a matter of having enough time to find someone skilled enough to properly present a ruling that sold their side in a "believable" manner. They've been trying to sell their side to the public for 6 months and more and more people have realized what crap it is. More time to find someone else wouldn't help. Regardless of how skilled a person may be, there is no way to polish a turd as the saying goes.
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Anonymous Coward, 30 Dec 2013 @ 2:42pm

Re: Re:
I wouldn't go so far as to say that execution is appropriate, but people (starting with Clapper and Alexander) need to go to prison. (And not "white color resort prison... no no no... Federal pound me in the ass prison.")
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Anonymous Coward, 30 Dec 2013 @ 2:50pm

Re:
Unless there is concrete evidence to suggest that there was impropriety involved here, no he should not be cited. The case should be appealed and the ruling overturned. Sheindlin should have been cited and removed from her case either but just because that happened with regards to a ruling you agree with doesn't mean it should be done in a case where the ruling is one that you don't agree with. The neocons in government are the ones that live by the "ends justify the means" mentality which is a big part of the problem here. You can't fight against that by advocating the very thing you are fighting against. You have to stay on the high road.
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Searching for wisdom, 30 Dec 2013 @ 3:15pm

Old tricks and new ones
Think this poor judge was caught cheating on his wife or something and now is being extorted to further the cause? Apparently that is something we as a country do to our citizens to protect our citizens.
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Lurker Keith, 30 Dec 2013 @ 3:48pm

Sounds like Prenda more & more
As I said before, Pauley's opinion reads like something you expect to come from Prenda, not a Judge.

Made up facts, misquoted Law, accepting info no sane person would, pretending facts don't exist or mean the opposite of what they do... Sounds like Prenda to me.
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ECA (profile), 30 Dec 2013 @ 3:52pm

Ok, EVEN the NSA has shown...
That monitoring the NET is a HASSLE and impossible.
the only thing that can be monitored, are the MAJOR Used programs for Chat, and MAYBE some of the CHAT in games/other programs.
There are so many ways to send data, back and forth, that TRYINg to monitor the net, is like TRYING to take COPIES of it EVERY DAY, the WHOLE NET. Not just the USA.
And the ONLY way to do this is to get to the hardware makers in OTHER COUNTRIES, to install back doors into the hardware.. And that STILL could not in ANY way copy/monitor the WHOLE of the net..not even all the data in the USA. they would need enough Servers to MATCH what is already being USED by all the server farms. ANd the POWER to analyze ALL that DATA, in real time.. which would take about 25% of the people int he USA to go thru..

IF' you had a choice, WHO would you monitor/watch in the USA? Look up the history of WHO was helping Germany in WWII. its an interesting list.

I would use these resources to monitor the corps and WHERE THE MONEY IS GOING..
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Anonymous Coward, 30 Dec 2013 @ 4:03pm

Ya know, if this somewhat questionable gummint keeps shooting itself in the foot, eventually it's gonna run outta feet. Conning judges is shooting itself with a 155, point blank.
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JackOfShadows (profile), 30 Dec 2013 @ 4:52pm

Re: Re: Re:
Treason is the only crime whose punishment is proscribed in the Constitution.
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Anonymous Coward, 30 Dec 2013 @ 5:38pm

It's at times like these when you can see how far the cancer has spread. If America were a patient, it wouldn't have long to live.

I fully expect to see an American Revolution within my lifetime.
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Anonymous Coward, 30 Dec 2013 @ 6:21pm

Re:
---preceded by total economic collapse brought on by the financial types being a little too greedy, as they were several times before. The difference is we can't handle it now - not enough reserve.
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Uriel-238 (profile), 30 Dec 2013 @ 6:59pm

Linus' Law seems to apply...
...to judicial rulings.

I wonder if the facts and logic of a published ruling are dubious, is that grounds to appeal?

As of this posting I have not received a US National Security Letter or any classified gag order from an agent of the United States
Encrypted with Morbius-Cochrane Perfect Steganographic Codec 1.2.001
Monday, December 30, 2013 6:57:59 PM
juice velcro chimpanzee cape apetite snack prank shorts
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Cowardly Anon, 30 Dec 2013 @ 8:27pm

Judge William Pauley
I wonder what the NSA has on him?
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Antsan (profile), 31 Dec 2013 @ 2:56am

Math
I'm not sure whether this applies to the USA as well, but here in Germany law students aren't required to do math at all. Of course you then get horrible stuff like this.
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Anonymous Coward, 31 Dec 2013 @ 3:22am

Hey
Do you guys remember that one time when the NSA prevented 9/11? Awesome job!
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Jeremy Lyman (profile), 31 Dec 2013 @ 5:56am

Re:
Or they've got a sweet "cyber-security" gig lined up for him once that judiciary revolving door spits him out.
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art guerrilla (profile), 31 Dec 2013 @ 7:48am

Re: Re:
i can't believe you said something as fucked up as that ! ! !

the word is 'en masse'...

(all the rest is spot on...)
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Anonymous Coward, 31 Dec 2013 @ 7:58am

Friends in high places...
"Unfortunately, Judge Pauley appears to have failed in his job to do the most basic checking of what he was told. And, because of that, we now have a horrible ruling on the books."

Maybe so, but you oughta see the size of Pauley's new boat, and the babes that come with .... good thing the public can't see the new balance in the off-shore account...

Sure is nice to have the tax-payer's eternally open pocket just a quick reach away when you need to grease some friendly official palms eh.

Ah! Real Global Politics in action. :)
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Anonymous Coward, 31 Dec 2013 @ 9:21am

Re: Separation of church and state?
You can't. The separation of church and state -- this was originally intended to keep the government from forcing people to follow a state or federal ran church like England had at that time.
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Prisoner 201, 1 Jan 2014 @ 6:02am

Re: Hey
Doubleplusgood citizen! Loyalty to the Party and Big Brother! Let us also rejoice that the chocolate ration has been increased from 30 grams to 20 grams!
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