9/11, terrorists, motion to dismiss granted, terrorists, terrorists, 9/11 (Update)

Judge William H. Pauley III took his turn at bat in determining whether the government’s collection of telephony metadata might be uncool in any respect, as his brother, Judge Richard Leon, held a mere ten days earlier.  The title of this post is the TL;dr version of the opinion I used on twitter.

In ACLU v. Clapper, the court could not have been more deferential to the government.  I mean exactly that, in the sense that Judge Pauley adopted unsupported representations that the FISC Judge John Bates had concluded were false in a 2011 opinion recently declassified.

Judge Pauley swept past the issues of efficacy of the program with the rhetoric of the obvious, writing that “[t]he effectiveness of bulk telephony metadata collection cannot be seriously disputed,” when it is most seriously disputed.  But then, Judge Pauley offers no resistance to the notion that ours is a government of good and well-intended people who go to work every morning to serve us faithfully, and it is not for a judge to question the intentions or methods of the other two branches of government.

As for the judiciary’s involvement, Judge Pauley embraces its performance of its oversight duties. He notes that Judge Bates’ finding of government misrepresentation proves that the FISC is not merely a rubber stamp for the government, while ignoring his conclusion that the government’s representations cannot be accepted just because the government says so.

It’s natural to view an opinion through the prism of outcome, that in cases where a desired outcome is obtained, we laud the result and forgive any logical gaps in the rationale.  Where, as here, things tank, we parse the reasoning with the purpose of finding fault.  In reading Judge Pauley’s opinion, I’ve tried mightily to resist the impulse to grimace, even ignoring such quaint phraseology as “[i]t was a bold jujitsu,” whatever that means.

In a head-to-head comparison of the decisions of Judge Leon and Judge Pauley, Peter Landers at the WSJ Law Blog shows how the two differ fundamentally.  Where Judge Leon questioned, Judge Pauley accepted the premise of the primacy of the government’s defense of the nation against terror at all costs.  Everything that follows is, frankly, rather pedestrian rationalization.

Judge Pauley routinely adopts the precedent of Smith v. Maryland, shrugging off the distinction of seizing the data of a particular phone call under the Third Party Doctrine and seizing all data.  If there is no reasonable expectation of privacy, then it applies to all of us.  Judge Pauley dismisses concerns of privacy by noting that we willingly give away all privacy for convenience anyway, ignoring that while it may be unfortunately accurate, giving it willingly to commerce isn’t the same as the government seizing it without our knowledge or lawful basis.

But what struck me as the most disturbingly dismissive aspect of the opinion was Judge Pauley’s explanation of why the plaintiff, ACLU, had no business questioning the government in the first place:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that law breaking conduct by a government contractor that reveals state secrets–including the means and methods of intelligence gathering-could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215’s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.

That Congress’ purpose to approve of the Executive’s concealment of this seizure of all telephony metadata was frustrated by Edward Snowden’s “illegal” revelation, and the court’s acknowledgement of it as giving rise to an actionable claim would “spawn mischief,” reflects the most offensively backward reasoning imaginable.  If “spawn mischief” means using the legal system to seek redress for wrongs that have been deliberately concealed by the government so that it can do as it pleases without being questioned by those aggreived, then it should spawn a ton of mischief. That’s precisely the sort of mischief that provides a job for judges.

But that’s not quite the view of the problem taken by Judge Pauley. So the government’s engagement in secret seizure of personal information on such massive scale was intended to be concealed from the people should preclude review of its impropriety because no one was ever meant to know about it?  It’s just crazy and circular.

The rationale rewards keeping impropriety secret by holding that if no one was supposed to know and its revelation wasn’t “authorized,” no one is allowed to question or challenge. After all, it would be “absurd” to allow a challenge to a secret if it became known to all because some guy named Snowden revealed it without authorization.  Let’s all pretend it never happened, because it came to the world’s attention in a manner that displeased the party concealing it. Just crazy.

The depth of Judge Pauley’s deference to the authority of the government to do whatever its officials decide is necessary and appropriate in the name of defending the nation is stunning. He turns it over to the legislative and executive branches to decide its political worth, but demurs as to any role for judicial intrusion.  The fine men and women in the other branches of government will make the determinations of what’s best for the nation, and if there was anything unconstitutional about it, they would have chosen differently.  Problem solved.

Indeed, the Pauley opinion raises the very fears that are echoed so often on the internet, that there is no part of the system that won’t cover the back of the other parts, creating a fully insulated government and reducing the courts to apologists for the government.  Not everyone embraces the good faith and intentions of government officials with the faith shown by Judge Pauley.  And indeed, that’s one of the reasons why a judiciary exists as a check on the excesses and impropriety of the others, though this purpose utterly eluded the court.

And yet, as the reaction to this decision fed the paranoia that the legal system cannot, will not, confront the eradication of personal freedom and privacy in the digital age, let’s not forget that Judge Richard Leon is just as much a part of that system as Judge William Pauley III.

There is good reason to doubt that the legal system is up to the task of protecting constitutional rights rather than covering the government’s ass, but there is still hope that judges like Richard Leon will prevail over the routine deference to government power and authority reflected by Judge Pauley’s misbegotten opinion.  We all know about 9/11 and the terrorists, but we’re not ready to hand our nation and Constitution over to them so judges like William Pauley can sleep well at night.

The battle is joined. It’s not over yet. Don’t give up hope.  The terrorists have not won yet.

Update:  Andrew Cohen also does an excellent compare and contrast of the two opinions at The Atlantic.

Judge Pauley peppered his lengthy opinion with expressions of great respect for the government’s surveillance efforts. His respect for the nation’s intelligence operations was palpable.

Taken together, these two manifestos represent the best arguments either side so far has been able to muster. If you trust the government, Judge Pauley’s the guy for you. If you don’t, Judge Leon makes more sense.

Palpable is an excellent word choice. The sense isn’t that Judge Pauley is in any way dishonest in his adoration of the government’s conduct, but that he believes in the righteousness of the government, and this belief is “palpable.” Of course, that doesn’t explain the logical lapses, but therein lies the difference between believing and thinking.

Update 2: David Ziff points out that my criticism of Judge Pauley’s “dismissive” rhetoric toward the statutory claim neglects to note that Judge Leon similarly held that there was no private cause of action for Section 1861 orders, also because there was no congressional expectation that anyone would ever know they happened.

While this doesn’t so much vindicate Judge Pauley’s opinion as raise an issue with Judge Leon’s, it reflects both the confirmation bias and, frankly, nitpicking give Judge Leon’s ruling. This is particularly true given Judge Pauley’s rhetoric. Still, Ziff is correct, I stand corrected and it’s worthy of note.

7 comments on “9/11, terrorists, motion to dismiss granted, terrorists, terrorists, 9/11 (Update)

  1. Jim Tyre

    There are so many things one could say about Judge Pauley’s Opinion. One, which has largely escaped notice, is his reliance on the 9/11 Commission Report. At page 52 he writes:

    “Like the 9/11 Commission observed: The choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil. The 9/11 Commission Report, at 395.”

    At page 395, What the Commission actually wrote was:

    “We must find ways of reconciling security with liberty, since the success of one helps protect the other.The choice between security and liberty is a false choice, as nothing is more likely to endanger America’s liberties than the success of a terrorist attack at home. Our history has shown us that insecurity threatens liberty. Yet, if our liberties are curtailed, we lose the values that we are struggling to defend.”

    1. Jeffrey Deutsch

      Jim, am I the only one who thinks Judge Pauley (as you quoted him) fairly summarized the 9/11 Commission’s report (as you quoted it)?

      And am I the only one who thinks it’s a fair point? G*d help any and all Moslems — not to mention Sikhs, domestic dissenters, etc — on U.S. soil if and when we get another 9/11.

      All that having been said, you are right in that rubber-stamping government decisions on the premise that “they’re good people, they know what they’re doing, so let’s just trust them” is to the judiciary what homeopathy is to the medical profession.

      1. SHG Post author

        I don’t think you understood Jim’s comment. His point was that Judge Pauley’s reference to the 9/11 report fundamentally misstated the report. So if you think they’re the same, then you might not be the only one, but it’s not something to be proud of.

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  3. John Barleycorn

    “While there have been unintentional violation of guidelines, those appear to stem from human error and the incredibly complex computer programs that support this vital tool.”
    ~Pauley

    Incredibly it does appear the regularly scheduled programmings inerita masked in “complexity” is sufficient.

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