Lots of folks have been discussing Judge Pauley’s opinion affirming the constitutionality of the NSA’s metadata collection program. I’m not enough of a Fourth Amendment or FISA expert to weigh in on the merits. However, I do want to weigh in on one aspect of Judge Pauley’s opinion that’s gotten some heat on the interwebs. Here’s an example:
Here’s the relevant text from the opinion:
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.
Opinion at 25.
On his blog Simple Justice, Scott Greenfield calls this “the most disturbingly dismissive aspect of the opinion,” adding:
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 aggrieved, then it should spawn a ton of mischief. That’s precisely the sort of mischief that provides a job for judges.
But though there is much to admire in Greenfield’s critique of Judge Pauley’s opinion, I think he’s made a misstep here.
Judge Pauley’s discussion of government concealment comes as part of a broader discussion of statutory rights of action. In other words, Judge Pauley is trying to determine whether statutes passed by Congress permit third-party collection targets (such as the ACLU) to sue the government for privacy violations. Judge Pauley concludes that since Congress’s entire purpose was to conceal the collection from the targets, Congress could not have intended to give the targets an individual right of action. That seems totally plausible.
Critically, Judge Pauley’s reasoning on this point has nothing to do with whether the Constitution itself allows the ACLU (or other targets) to challenge the government’s collection of their data. Indeed, after concluding that the relevant statutes do not permit the ACLU’s claims, Judge Pauley makes clear: “That Congress precluded the ACLU’s statutory claims does not bar its constitutional ones.” Opinion at 37 (emphasis added). And indeed Judge Pauley sides with the ACLU on the constitutional point. He permits the constitutional claims to go forward, though he ultimately finds them unpersuasive for the reasons critiqued by Greenfield and many others.
For those critical of the government’s NSA programs, it is easy to be critical of Judge Pauley’s opinion. Greenfield himself warns that it is “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.” Many civil libertarians despise the result reached by Judge Pauley while celebrating the result reached by Judge Leon, who just a couple of weeks earlier concluded that the NSA’s program was likely unconstitutional.
But look at what Judge Leon had to say on the very same statutory issue for which Judge Pauley is being criticized:
[T]he purpose and legislative history of Section 1861 also support the conclusion that Congress intended to preclude APA claims by third parties. Simply put, Congress did not envision that third parties, such as plaintiffs, would even know about the existence of Section 1861 orders, much less challenge their legality under the statute. . . . [E]xtending a [right of review] to third parties would make little sense in light of the secrecy of such orders.
Opinion at 27 (emphasis in original).
So there you have it. The Fourth Amendment-loving Judge Leon reaches the exact same conclusion, for the exact same reasons, as Judge Pauley—whose conclusion was called “disturbingly dismissive.” There may be much to criticize about Judge Pauley’s opinion, but I don’t think that paragraph should be taking this much heat.