I haven’t read Judge Richard J. Leon’s decision saying the NSA surveillance of cell phone records is a violation of the Fourth Amendment but have seen in some of the news reports certain quotes from his decision. From my understanding of the law of search and seizure he is way off base. I expect that either the Court of Appeals or the United States Supreme Court will find that he erred in his findings but until then we’ll be deluged with misinformation about what the NSA is doing.
In fact it seems even Judge Leon doesn’t understand it. It’ll be a while before his finding is reversed but he at least had the sense to stay his decision, which means it won’t ever take effect. This will play out well in the liberal cocktail DC circuit where he’ll get more than his 15 minutes of fame but it makes one question the wisdom of the man.
There’s a part of his decision that really bothers me since it borders on silliness. Judge Leon wrote: ‘‘I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware ‘the abridgment of freedom of the people by gradual and silent encroachments by those in power,’ would be aghast,’’ at the extent of the surveillance conducted by the NSA.
James Madison. 4th president of the United States. Born in 1751 and died in 1836. He had a hand in writing the 4th Amendment which states: “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.”
Judge Leon’s hyperbolic comment as to Madison’s reaction seems relatively obtuse. I suggest it is absurd to talk about how someone living in the 18th Century would react to things of today. I’m sure there are many things that have happened since 1836 would have aghast James Madison such as electric lights, automobiles, airplanes, the Holodomor, the Holocaust, A bombs, H bombs, intercontinental missiles, nuclear submarines, man in space, man walking on the moon, the Hubble Space Telescope, smart weapons, Internet and drones, to just name a few things. He would also be unable to envision the type of terrorism that now exists in this world as we have seen with people flying planes into buildings or blowing up airplanes or strapping explosives to themselves in order to murder others.
Suggesting we decide things of today based upon how an 18th Century person would react to them seems patently wrong. How then do we apply the words in that document “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, . . . “ to today’s reality?
I suggest we must focus on what is reasonable and what is unreasonable. It seems it is reasonable for a country to take appropriate measures to secure the safety and well-being of its people. In light of the threat, the question to answer is whether the NSA was doing something unreasonable?
I suggest not. It was not capturing the contents of our conversations. By this I mean it was not listening to or recording what one person said to another or wrote to another. Nothing spoken or written was seized. This seems to be overlooked by most who comment on this matter.
All that NSA captured was that phone XYZ, listed to a certain person, contacted another phone, MNO, listed to a certain person, on a certain time and date and the contact lasted a certain amount of time. The enormous amount of cell phone information captured (billions?) insures the protection of everyone. We can rest assured that no one will ever access that information until some future date, and then only if there is a reason to suspect that XYZ was involved in something that gave a reasonable suspicion of illegality.
Judge Leon wrote ““Thirty-four years ago, when people wanted to send ‘text messages,’ they wrote letters and attached postage stamps, . . . ” That’s true, technology has changed drastically. But Judge Leon formed the wrong conclusion from the great changes over the last 34 years. A proper reading of history would require him to say that James Madison would be aghast that the NSA did not take every reasonable action to keep the American people safe.
What is the difference between the FBI’s use of unauthorized wiretaps sixty years ago and what the NSA does today? Are you certain none of the content is viewed prior to getting a warrant? Do you accept the word of the Government that they are complying with the 4th Amendment? Are Federal Government assurances as credible as FBI 209 reports( fabrications)? Didn’t the Connolly and WB trials prove conclusively that the DOJ is corrupt to the core? Haven’t the judges been exposed as dishonest political functionaries? The NSA was suppose to track foreign communications not domestic. The fundamental problem with government is it’s tendency to grow unchecked. Mission creep always sets in. You don’t trust the FBI on Todashev but accept what NSA says? Jay Leno had it right when he said he was happy about the government shutdown because for the first time in years he can make a phone call or send an e-mail without someone else listening in.
NC –
You ask some relevant questions. Let me see if I can answer them for you. By the way Judge Leon went to the same college as your friend J. Arthur so keep that in mind.
The FBI was intercepting the contents of the communications, the NSA is interceting the existence of the communication. Its like me surveilling you and seeing you go into XYZ’s house, nothing wrong with that; but if I have a intecption device in that house without court order and listen to your discussion then that is what is prohibited.
There’s also a difference in that these cases the FiFA court has issued a warrant authorizing this massive seizure of evidence unlike what the FBI did which was to operate on its own initiative base on a letter from an attorney general that was quite broadly interpreted as a cover.
The Director of the NSA said it is not interested in content only the metadata to show connections. I am as certain as I can be that the content is not captured therefore it cannot be viewed.
I don’t accept the Government’s word but knowing the vast amount of data being collected it seems more likely than not that the Government is not lying about what it is doing. In my experience, when I had cause to believe someone was involved in illegal activities the metadata I gathered without a warrant was enough to proceed to get a warrant along with some other things.’=
Connolly’s Boston trial was fine; the Florida trial was wrong. Judges are people too, they like to be popular with the cocktail set, and some in their isolation hallucinate.
I’m not sure what the NSA is supposed to do other than to keep us safe.
You are right about Government’s desire to grow and do more and more and take more and more into its hands and seek to keep its actions hidden. The NSA had its operation exposed and it seems to me that it was not doing anything that was unreasonable.
The FBI has given me reason to mistrust it in the Todashev situation; the NSA hasn’t done that. The problem with Jay Leno’s comment is he misconstrues what is happening and that becomes what people believe.
Excellent post on Judge Leon’s ruling. I am guessing his decision will not survive a certain appeal.
Interesting to me that the divide of opinion on use of this telephone number information differs greatly between those such as yourself who have actually used this kind of information in investigations and the great many politicians and commentators who have not–and don’t really understand it.
Chris:
Thanks. I can’t figure out if the disinformation is deliberate or not. There’s an article Monday in the Guardian that spells out what the program does which I didn’t see before posting. It is at http://www.theguardian.com/world/2013/dec/16/nsa-surveillance-60-minutes-cbs-facts It points out exactly what is being done which is the collection of the metadata. The director of NSA Keith Alexander said to intercept the contents would be counter productive. It seems it’s easier to shout “the sky is falling” than to look up and see that it isn’t.
Matt
I believe the disinformation is deliberate. The ACLU et al have smart lawyers–too smart to be just mistaken on the facts. In 2010 I published a law review article in “William & Mary Policy Review” on national security letters, which you know are nothing more than subpoenas for national security cases and often used to get telephone records.
Research for the article included looking into the infamous “Library Connection” case in Conn. where the Government was alleged by the ACLU to have been trying to delve into Americans’ reading habits, etc. Big ACLU fundraiser.
Turned out the FBI was surveilling a suspected terrorist and saw the suspect use a public internet computer that happened to be in a public library. The Bureau subpoenaed records of internet connections for the 45 minutes that the suspect was on that particular computer. Pretty reasonable I thought–and think.
The disinformation spread in that case could only have been intentional.
Chris
Fine, important post on this “decision.”
GOK:
Thanks.
Mr. C, off-topic:
Congrats on the blog’s new title. Merry Xmas and Happy New Year!
GOK:
Thanks – Merry Christmas and Happy New Year back at you!