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This morning, US District Judge Willaum Pauley ruled that the National Security Agency's dragnet phone surveillance is legal—just weeks after US District Court Judge Richard Leon ruled the NSA program was unconstitutional.
According to the Associated Press, Judge Pauley determined the September 11 terrorist attacks might have been prevented if bulk telephone data mining had been in place. In ruling that mass surveillance is legal, Pauley dismissed an ACLU lawsuit that argued the government's interpretation of the Patriot Act's powers was far too broad to justify the mass data mining of Americans' electronic communications.
"The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world," wrote Pauley. "It launched a number of counter-measures, including a bulk telephony metadata collection program—a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data."
Could this be a preview of how the Supreme Court might rule on the surveillance question? Judge Leon's decision, while encouraging to many observers, feels like a judicial anomaly. More often than not, courts favor the US intelligence complex. There is little reason to believe the Supreme Court's ideologically conservative majority would suddenly reverse course on surveillance.
In February of this year—months before Edward Snowden's stunning NSA leaks—the Supreme Court dismissed a lawsuit brought by Amnesty International and other groups. The defendants argued that journalists, human rights advocates, and lawyers would be harmed by the NSA's surveillance of their foreign communications. Judge Samuel Alito, delivering the Supreme Court's opinion, concluded that the defendants did not have standing. "They cannot demonstrate that the future injury they purportedly fear is certainly impending and because they cannot manufacture standing by incurring costs in anticipation of non-imminent harm," wrote Alito.
Justices Stephen Breyer, Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsberg dissented, questioning the majority's decision. In their opinion, the defendants might well have standing for "future injury." The minority also suggested that the defendants could have incurred costs in countering NSA surveillance. The ideological split in the nation's highest court probably doesn't bode well for any future Supreme Court case on surveillance.
Add to this the Supreme Court's November dismissal of an Electronic Privacy Information Center (EPIC) lawsuit claiming the Foreign Intelligence Surveillance Court (FISC) exceeded its legal authority in ordering Verizon to hand over telephone metadata. EPIC, as a Verizon customer, argued that it had legal standing, and was harmed by Verizon's data handover, an argument that did not sway the court. This was the Supreme Court's first opportunity to address NSA surveillance in the wake of Snowden's leaks, and they brushed it aside.
While multiple surveillance reform bills are in committee on Capitol Hill, this could be exactly what some government officials want. A pro-surveillance Supreme Court ruling would effectively take the power out of the hands of legislative reformers. Senator Dianne Feinstein, who crafted her own bill to preserve and enhance the NSA's powers, suggested as much in her response to Leon's ruling.
“Only the Supreme Court can resolve the question on the constitutionality of the NSA’s program," Feinstein wrote in a statement. "I welcome a Supreme Court review since it has been more than 30 years since the court’s original decision of constitutionality, and I believe it is crucial to settling the issue once and for all. In the meantime, the call records program remains in effect."
When a pro-surveillance legislator like Feinstein calls for a Supreme Court case on the issue, it suggests confidence that the court will tow the government line. So, if the Supreme Court takes up surveillance in 2014, we could see the court's recent surveillance rulings and Judge Pauley's decision dictate their decision. And if the high court does rule surveillance constitutional, we'll all suffer the consequences.