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

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.

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

District Court Tosses ACLU's Lawsuit Against NSA With Very Regrettable Decision That Props Up Agency Rhetoric

from the the-court-really-shouldn't-be-a-propaganda-arm-for-the-government dept

The legal battles surrounding the constitutionality of the Section 215 bulk phone records collection are now suddenly at odds with each other. A step forward (Judge Leon's decision earlier this month finding the collection to be "likely unconstitutional") has now been matched by a step backward. Judge Pauley of the Southern District of NY has found the Section 215 program to be legal and has dismissed the ACLU's lawsuit against the government. (The ACLU is planning to appeal).

Pauley refers to the same case (Smith v. Maryland) that Judge Leon referred to in his decision, but comes to very different conclusions. Pauley's ruling is predicated on the very expansive reading of the Third Party Doctrine security, intelligence and law enforcement agencies have relied on for years. Information given voluntarily to third parties is not protected by the Fourth Amendment. This reading has allowed the NSA to collect every phone record generated in the US for the past half-decade uninterrupted and for a majority of the last 12 years.

For many people, the reality of the Third Party Doctrine didn't hit home until the Snowden leaks began. It wasn't so surprising that this sort of data harvesting was happening. Whistleblowers had been warning for years that the government was collecting data and content on a massive, worldwide scale. The real shock was that, for the most part, everything was completely legal.

Judge Pauley's decision reaffirms this status quo. The opening paragraph sets the tone and lets the reader know exactly what conclusion Pauley will arrive at 54 pages later. The opening paragraph could have been ghostwritten by the ODNI.

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego,California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Intelligence ("FBI") of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The footnote refers to the 9/11 Commission Report whose findings directly contradict this narrative. The problem was not that the information wasn't there. It was that it wasn't shared. It was the fact that the CIA lost al-Mihdhar, but rather than issue an alert or place him on a watch list, it chose to do nothing. Many things went wrong, but not having the intel wasn't the issue.

While Pauley does acknowledge that unchecked surveillance can result in diminished civil liberties, he restricts his arguments to the legality of the program in question. Whether or not the 215 program should continue should be turned over to the "other two coordinate branches" in Pauley's opinion, which makes his dismissal of the ACLU's injunction request partially a punt.

Pauley acknowledges Snowden's contribution to the national discussion on security and privacy (via "unauthorized disclosures") in the early pages of his decision but then proceeds to deliver the government's official depiction of this program as if the leaks, and everything that followed, never happened.

Pauley delivers the following assertions with apparent sincerity, ignoring evidence to the contrary.

Bulk telephony metadata collection under FISA is subject to extensive oversight by all three branches of government. It is monitored by the Department of Justice, the intelligence Community, the FISC, and Congress.

Oversight has been spotty at best, depending on who's controlling the dissemination of relevant information. Rep. Mike Rogers' tenure as the head of the House Intelligence Committee has been marked by deliberate and repeated obfuscation.

Since the initiation of the program, a number of compliance and implementation issues were discovered and self-reported by the Government to the FISC and Congress…[T]he NSA addressed these problems...

Except that FISC judge Reggie Walton found the abuse so pervasive and the NSA's interpretation of its own programs so misleading that he posited the 215 program had never adhered the court-imposed limitations. Further, he noted that proposed remedies were deployed haphazardly with a minimum of followup. This resulted in the program nearly being completely shut down in 2009. But Pauley presents the NSA's self-reporting as evidence of its trustworthiness -- and as more "evidence" that the oversight works.

Pauley buys everything the NSA claims about its program, from metadata not being a useful identifier (obviously untrue -- anyone with an internet connection can find out a great deal about someone or someones with little more than a handful of phone numbers) to a large portion of the database being untouched (which would normally call into question the necessity of having a database this large but is somehow portrayed as an indicator of the agency's restraint).

Pauley also addresses the limitations of the oversight pertaining to the Section 215 program, but again, finds nothing particularly wrong with the way information dissemination was handled.

The following year, when section 215 was again scheduled to sunset, senators were informed of an updated classified document available for their review. See Letter from Sens. Feinstein Chambliss to Colleagues (Feb. 8, 2011) (ECF No. 33-11). Apparently some Senators did review it while other Members of Congress did not. The House Intelligence Committee did not make the document available to members of the House. Dozens of House members elected in 2010 therefore never had an opportunity to review the classified document. While this is problematic, the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance.

No harm, no foul. The executive branch -- one of three branches charged with oversight -- did what it was supposed to, therefore a second branch's (intentional) failure to provide adequate oversight isn't an issue.

Pauley maintains that the collection is "necessarily broad" because fighting terrorism is a matter of prevention, rather than a matter of investigation. Since the NSA CAN'T know what it's looking for, it needs it all. This has proven to be a problem for the intelligence agency, as its tendency to collect as much as it can has swamped analysts in mountains of data, most of which serves absolutely no purpose. But Pauley ignores this reality while dismissing the ACLU's arguments, stating that the Section 215 collection will always be "relevant" to the NSA's security agenda.

But this is all a sideshow. The real question is whether the Section 215 collection violates the Fourth Amendment. Pauley looks at Smith v. Maryland and decides it does not, quoting Smith's assertion that a person has "no legitimate expectation of privacy in information he voluntarily turns over to third parties." The ACLU argued that the collection of metadata allows for the construction of a "rich mosaic" of information about any citizen and is much more revealing than the government will admit. Pauley dismisses the ACLU's "parade of horribles" by quoting none other than Gen. Alexander.

General Alexander's testimony on this point is clear:

[l]n the open press there's this discussion about pattern [that the Government is] out there doing pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We're not authorized to do it. We aren't doing it. There are no automated processes running in the background pulling together data trying to figure out networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.

Pauley also makes the claim other judges have made -- if a single instance isn't a Fourth Amendment violation then the millions of simultaneous collections don't suddenly create a Fourth Amendment issue. Rights do not spring into existence based on scope.

But even as Pauley acknowledges the possibility that the ubiquity of cellphones has created a climate much different than the one the 1979 ruling took place in, he relies on that case's previous assertion to buttress his claim that no rights are being violated by the Section 215 collection. He then goes on to relay the government's arguments that security -- and the War on Terror -- should necessarily trump all constitutional objections.

Here, the balance of the equities and the public interest tilt firmly in favor of the Government's position. "Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the highest order." Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010); see also Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation") (internal quotation marks omitted); In re: Directives [REDACTED] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev. 2008) ("[T]he relevant government interest-- the interest in national security--is of the highest order of magnitude").

The Constitution vests the President with Executive Power. U.S. Const. Art. ll. That power reaches its zenith when wielded to protect national security. Cf. Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion . . rest[s] heavily upon any who might attack it." (internal quotations omitted))...

But of all the assertions Pauley makes, this one is most incredible (and regrettable):

The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America's enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court's view, they offer ample justification.

Even those on the direct payroll of intelligence agencies have had trouble pinpointing the program's success in preventing terrorist attacks. For Pauley to claim that the "effectiveness can't be seriously disputed" is laughable. The last several months have seen many question the effectiveness of the Section 215 program and the challenges issued by the NSA's many critics have yet to be definitively answered. Pauley treats the NSA's assertions as gospel.

When he sticks to the previous readings of the Third Party Doctrine, he's on safe ground, precedent-wise. There's no need to entertain the NSA's talking points in order to simply agree with previous rulings. The issue here is that these rulings are outdated and the Third Party Doctrine needs a serious reexamination. Pauley's allowance of the government's arguments unchallenged is the real issue here. He may not be able to find where they've violated the Fourth Amendment, but he should at least be willing to attack its tepid propaganda with the same enthusiasm he showed for dismantling the ACLU's arguments. But he didn't and now the agency has another court decision that gives its ridiculous talking points more credence.

Filed Under: 4th amendment, nsa, section 215, smith v. maryland, surveillance, third party doctrine, william pauley
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