Democrat Appointed Judge Allows Case in Order to Protect NSA Abuses

Judge William H. Pauley, appointed by President Bill Clinton, did find that the ACLU had standing [to sue the NSA]. The ACLU had not been granted standing in its case against dragnet warrantless NSA surveillance before the Supreme Court and the lawsuit was dismissed. However, Pauley found that Congress had precluded challenges to the provision of the PATRIOT Act known as section 215, which the government has claimed grants the power to indiscriminately collect Americans’ phone records from telecommunications companies. He also did not find the constitutional claims argued by the ACLU had any merit.

“Allowing any challenge to a section 215 order by anyone other than a recipient would undermine the government’s vital interest in keeping the details of its metadata collection program secret,” he wrote in his decision. “It would also—because of the scope of the program—allow virtually any telephone subscriber to challenge a section 215 order.”

  Firedoglake

Et, voila! You can’t know that an order has been issued against you, so therefore, you can’t sue.

I wonder if any of the NSA leaked documents contain names of people who have been “recipients” of a section 215 order, and if so, if anyone holding those documents would give that information to said recipients so that they CAN challenge it.

Pauley found that “tangible items”—which the NSA believes it is permitted to collect under section 215—are “relevant” if they “bear on or could reasonably lead to other matter that could bear on the investigation.” (It would be difficult to conjure a more broad definition of “relevant,” though one knows there are government lawyers in the Justice Department whose job it is to further expand the limits traditionally imposed by the word “relevant.”)

[...]

When the NSA makes a query, “it only learns the telephony metadata of the telephone numbers within three ‘hops’ of the ‘seed.’” Without resorting to any other techniques the government “does not know who any of the telephone numbers belong to.” It does not know who subscribes to telephone numbers A or B.

Seriously? The telephone companies know. And if the government can’t figure out who the subscriber is, then what the heck use is the metadata? Why would they be collecting it? “Without resorting to any other techniques.” Indeed! So they’re going to collect all this data and then not resort to any other techniques to make any sense or use of it? Not even a reverse telephone number directory? Oh, wait. Maybe that’s how they failed to stop the 9/11 attacks.

Pauley wrote that “any alleged chilling effect here arises from the ACLU’s speculative fear that the government will review telephony metadata related to the ACLU’s telephone calls.”

Really? With all due respect, your honor (which is NONE), the ACLU has no doubt been aware that the government has been collecting all its telephone communications since the ACLU was formed.

Even if the ACLU could prove it had statutory or constitutional claims with merit, the judge decided this would “cause increased risk to national security and the safety of the American public.”

So, really, that’s all the explanation we needed from Judge Pauley.

Or this:

” The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone number 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 implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’ intent.

Just. Wow.

Anyone care to speculate whether the NSA or other government agency has photos of Judge Pauley naked with a ten-year-old?

The decision on Friday “is the exact opposite of Judge [Richard J.] Leon’s [recent ruling] in every way, substantively and rhetorically,” said Orin S. Kerr, a law professor at George Washington University. “It’s matter and antimatter.”

The case in New York was brought by the American Civil Liberties Union, which said it would appeal.

“We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, a lawyer with the group.

A spokesman for the Justice Department said, “We are pleased the court found the N.S.A.’s bulk telephony metadata collection program to be lawful.”

The next stops for the parallel cases are the appeals courts in New York and Washington. Should the split endure, the Supreme Court is likely to step in.

  NYT

And we know how that will sort out, don’t we?

Can we call Judge Pauley an "activist judge"?

...but hey, do what you want...you will anyway.