by FRANKLIN LAMB

Beirut

The answer to this question is being pondered across America in light to the two seeming mutually contradictory US Federal Court decisions handed down this month from Courts in Washington DC and New York.

The legal issue of what rights are left to American citizens that can prevent governmental intrusions into their privacy and also governmental invasions using heavy handed searches and seizures following the launching of the Bush administrations ‘war of terrorism’ has gained new impetus following disclosures by former National Security Agency analyst turned whistle blower, Edward Snowden. Without Snowden’s patriotic leaks, no legal challenge could have been brought to the NSA practices.

Now that two US Federal District Courts, with identical powers under the US Constitution have seemingly reached opposite results on the same legal issue involving the right of the NSA to conduct ‘metadata’ searches and store the information of scores of millions of unknowing Americans the issue is likely going to have to be decided by the US Supreme Court. As predicted, appeals were immediately filed from the Trial Courts decision in both cases.

Initially, civil libertarians were encouraged earlier this month when in light of the Snowden revelations of massive US government spying on Americans and millions of foreigners, Federal Description: Judge Richard Leon of the United States District Court for the District of Columbia ruled on 12/16/13 that the bulk collection by the National Security Agency of cell phone data (everyone you called, when you called them and where you were when you called them) of Americans violates the Fourth Amendment to the Constitution and is “Orwellian”.

Judge Leon explained that we now use our smartphones for a wide variety of personal activities in which we have the expectation of privacy, and probably we have more expectation of privacy from our phones now than we did from a pay phone in the 1980s. He made the point that cell phones today includes a citizens, location when one makes a call and becomes a GPS made the call, functioning essentially as a GPS. He wrote, “It’s one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.”

Judge Leon focused on whether the NSA massive surveillance violated the 4th Amendment which provides: “The right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

He writes:

“The threshold issue that I must address, then, is whether plaintiffs have a reasonable expectation of privacy that is violated when the Government indiscriminately collects their telephony metadata along with the metadata of hundreds of millions of other citizens without any particularized suspicion of wrongdoing, retains all of that metadata for five years, and then queries, analyzes and investigates that data without prior judicial approval of the investigative targets. If they do – and a Fourth Amendment search has thus occurred– then the next step of the analysis will be to determine whether such a search is ‘reasonable.’”

Judge Leon found that the NSA when it demands citizens telephone metadata is conducting a search, and that it is most likely an unreasonable search of our personal effects according to the Fourth Amendment, since there is no specific suspicion of wrongdoing by any individual whose records are demanded. He immediately granted the Plaintiffs request for an injunction that blocks the collection of phone data for the plaintiffs and orders the government to destroy any of their records that have been gathered. As is common Federal Court practice, the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

No sooner had the Judge Leon decision been published and was encouraging civil libertarians to argue that the US Constitution still protects some citizen rights against government abuse than US Federal District Judge William H. Pauley III in New York ruled that a National Security Agency program that collects enormous troves of phone records is legal, making the latest contribution to an extraordinary debate among courts and a presidential review group about how to balance security and privacy in the era of big data. In just 11 days, the two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis. The latest decision could not have been more different from one issued by Judge Richard J. Leon in Washington, who ruled that the program was “almost Orwellian” and probably unconstitutional.

Judges Leon and Pauley have starkly differing understandings on how legal that program is. Judge Pauley, whose courtroom is just blocks from where the World Trade Center towers stood, endorsed arguments made in recent months by senior government officials — including the former F.B.I. director Robert S. Mueller III — that the program might have caught the Sept. 11, 2001, hijackers had it been in place before the attacks. Wrote Judge Pauley: “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,” Judge Pauley wrote on Friday. “This court finds it is.”

Judge Pauley decided to ignore several compelling US Constitutional issues and applications of its provisions to the NSA case. He chose to avoid 4th Amendment prohibitions on unreasonable government searches of private papers and effects. As Professor Juan Cole recently reminded us, the 14th Amendment was the basis for a recent Supreme Court ruling forbidding law enforcement from using GPS tracking without a warrant. The courts decided that following someone around 24/7 as a “search” because such intensive monitoring of a person’s movements goes beyond just glimpsing the individual in public. NSA collection of metadata from cell phones track individuals just as a GPS devices do.

Other applicable US Constitutional provisions ignored by Judge Pauley include the 1789 Federalist promoted 9th Amendment, which a majority of the Founding Fathers wanted as guarantees that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The 9th Amendment is clearly designed to block the government from constraining people’s private behavior. As Cole points out, not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are also protected as a free people from government intrusions.

There are additional provisions in the constitution and in the history of court rulings that prescribe privacy for individuals from government intrusion. In fact, although “privacy” is not mentioned in the US constitution, the Supreme Court found in Connecticut v. Griswold that American citizens had a constitutional right to use birth control and that the state could not arbitrarily come into the bedroom and prohibit it. Some of the justices referred to the 9th Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That is, the government can’t just wake up in the morning and decide to constrain people’s private behavior. Not only are they protected from specific violations of their rights (attempts to curb speech, the press, religious belief or peaceable assembly) but they are protected in general as a free people from government intrusions.

Judge Pauley also ignored the relevant application of the 14th Amendment. In Griswold v. Connecticut, 381 U.S. 497 (1965) a landmark case in which the Supreme Court ruled that the Constitution protected a right of privacy, justices referenced the due process clause of the 14th amendment, which commands that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The late great Justice William O. Douglas argued that the Bill of Right’s specific guarantees have “penumbras,” created by “emanations from these guarantees and that these penumbras help give the Bill of Rights life relevance to today’s struggle to protect our civil rights. It was Douglas’ interpretation of the US Constitution that, the “spirit” of the First Amendment (free speech), Fourth Amendment (freedom from searches and seizures), Fifth Amendment (freedom from self-incrimination), and Ninth Amendment (other rights), as applied against the states by the Fourteenth Amendment, creates a general right to privacy that cannot be unduly infringed.” In his view there exists as part of the US Constitution a penumbra of privacy.

Judge Pauley ignored these and other Constitutional applications in order to uphold the NSA informational gathering project in spite of the fact that the NSA, every minute for the past 7 years and until today, is abridging the privileges and immunities of a free citizenry. They are depriving us of liberty without due process of law, for the reason that they have failed to obtain a judicial warrant based on grounds of specific evidence of wrong-doing.

Judge Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation. “The government does not cite a single instance in which analysis of the N.S.A.’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature,” he wrote.

Where these conflicting US Constitutional decisions leave the American public concerned with civil liberties and the disappearance of privacy is in a profound quandary with respect to the issues raised by Edward Snowden. Snowden described in his Christmas address, carried by British Channel 4 and widely aired on the internet the legitimate concern of all people who values individual liberty and privacy: A child born today might “never know what it means to have a private moment to them, an unrecorded, unanalyzed thought.” People walk around with a tracking device in their pockets, he noted, and as we now know, the NSA is collecting the metadata of those phones, which includes location information.

With words likely to become part of Law School curriculum, Mr. Snowden said that “this disappearance of privacy is important because privacy is what allows us to determine who we are and who we want to be.”

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Franklin Lamb is a former Democratic National Committee Member representing Oregon. He volunteers with the Sabra-Shatila Scholarship Program (sssp-lb.org)

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Franklin P. Lamb, JD, LLM,PhD
Legal Adviser, The Sabra-Shatila Scholarship Program, Shatila Camp (SSSP-lb.com)
Board Member, The Palestine Civil Rights Campaign, Beirut-Washington DC