Disparate Rulings May Send NSA Cases to High Court

, The National Law Journal

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WASHINGTON - Two federal judges came to such widely different conclusions about the government's telephone surveillance program in December that the U.S. Supreme Court likely won't ignore the issue.

The conflicting opinions, issued 11 days apart, have ushered the judiciary into the national debate over National Security Agency powers that followed the leak of classified documents in June, and that now includes calls for reforms from Congress and the White House.

In Washington, District Judge Richard Leon called the NSA phone data bulk collection program "almost-Orwellian." Southern District Judge William Pauley III in New York, in contrast, wrote approvingly that "this blunt tool only works because it collects everything" (NYLJ, Dec. 30, 2013).

"They are both in English," Orin Kerr, a George Washington University Law School professor, said of the rulings. "Other than that, they are polar opposites."

How the intermediate appellate courts rule on the challenges to the constitutionality of the NSA's collection of telephone call records would affect the odds of Supreme Court intervention, court watchers said. "There are too many variables, including statutory and related nonconstitutional questions," University of Chicago Law School professor Eric Posner said. "It will be easier to make a prediction once we have seen some court of appeals opinions. If, for example, Pauley is upheld and Leon is reversed, it is unlikely that the Supreme Court will review."

The U.S. Department of Justice on Jan. 3 announced its appeal of Leon's ruling to the U.S. Court of Appeals for the D.C. Circuit. A day earlier, the American Civil Liberties Union filed its notice of appeal to take the Pauley ruling to the Second Circuit.

Leon ruled on Dec. 16 in Klayman v. Obama that the NSA's telephony metadata program, which gathers details including time and duration about all telephone calls placed in, to and from the United States, "almost certainly" infringes constitutional protections against unreasonable searches and seizures. But in American Civil Liberties Union v. Clapper, Pauley concluded on Dec. 27 that the practices are lawful under the Fourth Amendment.

Leon, a George W. Bush appointee, was skeptical of the government's claim that the protection of national security justifies the data gathering, saying that James Madison "would be aghast" at the program. Pauley, a Bill Clinton appointee, argued the surveillance program is reasonable due to the "horrific" consequences of terrorism. "The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is," Pauley wrote in the opening sentence of his ruling.

If the court does take up one of the cases, Posner predicts the justices will rule for the government and uphold the surveillance program. "The actual invasion of privacy under this program is limited, and there is no evidence of abuse," Posner said. The Supreme Court already has ruled in a case dealing with post-9/11 NSA surveillance that may color its consideration of the metadata collection program. In Clapper v. Amnesty International, 11-1025, decided in February 2013, the court ruled that human rights advocates lacked standing to challenge the interception of calls involving foreign terror suspects (NYLJ, Feb. 27, 2013). The 5-4 decision was based in part on the unlikely prospect that phone calls involving the parties would be intercepted.

But four dissenters, led by Justice Stephen Breyer, said "commonsense inferences" suggested that the challengers' calls might well be intercepted. Recent changes in the law, Breyer wrote, made it possible for the government to "obtain court approval for its surveillance of electronic communications between places within the United States and targets in foreign territories." In a talk at the Aspen Institute in July, Breyer said the news of the broader NSA surveillance program revealed by former contractor Edward Snowden came as no surprise to him. "When I read these articles, I didn't find too much I hadn't read" in the briefing of the Clapper case, Breyer said.

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