The NSA and the “Prism of Outcome”

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:

Pauley Tweet

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.

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12 thoughts on “The NSA and the “Prism of Outcome”

  1. You make a good point about the parallel outcomes, but the dismissive aspect of Judge Pauley’s opinion comes from its opening (“absurdity”) through its attack on Snowden to its conclusion that it would “spawn mischief.”

    Judge Leon’s rejection of the statutory claim produces the same end result, but without the hyperbolic attack. While the rationale is similar (though not exact), it reaches the result without blaming the victim.

    • I agree with you regarding the difference in rhetoric. But I took your critique not to be just rhetorical, but logical: that the circular reasoning of “secret=unchallengeable” was absurd regardless of rhetoric. And I suppose I took “mischief” in a more legal/metaphorical way — like when a judge says an interpretation would do violence to a statute.

      In any event, thank you for reading and responding. Much appreciated!

      • You were right, it wasn’t just a critique of Judge Pauley’s rhetorical flourishes. So I guess I’m just as easily swayed by the prism of outcome as anyone else.

        Looking back, I now take issue with that aspect of Judge Leon’s opinion as well, but it seems disingenuous to nitpick the statutory holding given the outcome.

        And I’m always happy to be shown the error fo my ways. Thank you.

  2. Presumably the ACLU filed in NYC because they wanted 2d Circuit review, rather than DC Circuit. Care to venture a guess?

    I’m not a section 215 expert, but I’m not sure that Congress actually never intended anyone to ever find out about orders, as opposed to not requiring the Executive to reveal them. This is actually a pretty big difference: ordinarily, what is secret is a matter of unreviewable Executive discretion, to reveal or not as it chooses. And it frequently chooses to reveal secrets when it thinks doing so will put its conduct in a good light. (With respect to the actual legal basis for secrecy — that it is reasonably determined that revelation of the information would lead to significant harm to the national security — I’d say that it’s bad faith all the way down.) So if Congress permitted but did not require secrecy, that doesn’t say anything at all about what is supposed to happen if/when the secret is revealed.

    I suppose I should read the opinions to see why 18 U.S.C. 2712 isn’t relevant, but that’s more effort than I want to go to . . .

    • Oh I have no guesses on CA2 review. Of course, lots of it would depend on the panel, but even en banc, I have no idea. It’s been so long since I worked there!

      As for your point on the merits: makes sense to me! And it seems backed up by Jim’s post below. My guess is he knows what’s up.

  3. Pingback: 9/11, terrorists, motion to dismiss granted, terrorists, terrorists, 9/11 (Update) | Simple Justice

  4. David, Scott and Charley Carpenter,

    This is a bit of a meta response for all of you. By way of brief introduction (to David and Charley, Scott knows me) I am a Special Counsel to EFF, the Electronic Frontier Foundation, and have been one of the lawyers on EFF’s NSA domestic spying team since we filed our first lawsuit in 2006.

    David and Scott, the passages you focus on must be read in the light of the specific Complaints that were filed. The Klayman case (Judge Leon’s decision) and the ACLU case (Judge Pauley) seek only injunctive and other equitable relief. At the moment, we have two pending cases against NSA, Jewel v. NSA and First Unitarian Church v. NSA, both of which seek money damages and equitable relief. Judge Leon references a recent order in Jewel in footnote 30 of his Opinion. It begins to get at the relevant differences between a money claim and an injunctive claim. (It’s more complex, but that’s a good pointer for starters.

    Charley, it’s not correct to say that Congress never intended anyone to find out about Orders. Both EFF and ACLU have, or have had, a significant number of relevant FOIA lawsuits. Though the government doesn’t acknowledge this, all, or virtually all of the Orders released by the government itself (in contrast to the Snowden leaks) were as a result of court orders in those FOIA lawsuits.

    Also, I should mention briefly 50 USC 1806(f), which wasn’t at issue in the two hot news opinions, but is very much at issue in our cases. It provides a very specific mechanism for review by an Article III court (not FISC) in an action brought by an aggrieved person, as defined. It’s very much at issue in our cases, not so much in the Klayman or ACLU cases.

    • Thank you for the additional information Jim. It’s great to hear from someone who, unlike me, doesn’t need an “I’m no expert, but…” disclaimer at the start of a post!

      Anyway, that all makes sense to me. I guess my response to your meta-comment is to say that my post was sort of meta-ish itself. I don’t have any independent knowledge of whether or to what extent the statutory scheme calls for secrecy on these orders. But it seems to me that the congressional intent or the purpose/structure of the scheme w/r/t secrecy would be relevant considerations in determining whether there was an implied sovereign immunity waiver for the targets. Maybe Judge Leon and Judge Pauley got the answer wrong on that question, but the fact that they were looking to congressional intent of secrecy didn’t strike me as a Catch-22 or circular reasoning or anything like that.

      Also, I recall that the Klayman complaint sought $3B in class damages. Is that claim somehow different than the damages claims filed in First Unitarian and Jewel?

      • This is what I get for TWU – Typing While Uncaffeinated. ‘-) Yes, Klayman does seek damages (but only for the named plaintiffs, he’s reserved the right to try to make it a class action later). What I should have said is that Judge Leon was addressing Klayman’s preliminary injunction motion, where damages were not an issue. (His damages claims are quite visceral; ours are under a series of specific statutes as well as for constitutional rights violations.)

  5. I was reminded of this post when someone else just made a comment on it. For those interested, the Second Circuit is fast-tracking ACLU’s appeal. ACLU’s opening brief was filed a few days ago, http://pdfserver.amlaw.com/nlj/aclu-nsa-usca2.pdf The government’s oppo is due on April 10. I’ve no idea how quickly oral argument will be set after briefing is concluded (including ACLU’s reply brief).

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