Debate deepens as judge upholds NSA's call logs

Courts and a presidential review group argue over how to balance security and privacy.

NEW YORK TIMES NEWS SERVICEDecember 28, 2013 

In just 11 days, two judges and the presidential panel reached the opposite of consensus on every significant question before them, including the intelligence value of the program, the privacy interests at stake and how the Constitution figures in the analysis.

The latest decision, from Judge William Pauley in New York, could not have been more different from one issued Dec. 16 by Judge Richard Leon in Washington. Leon ruled that the program was "almost Orwellian" and probably unconstitutional.

The decision Friday "is the exact opposite of Judge Leon's in every way, substantively and rhetorically," said Orin 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.

A spokesman for the Justice Department said, "We are pleased the court found the NSA'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.

In the meantime, the decisions, along with recommendations issued Dec. 18 by the presidential review group, illustrate a complete absence of agreement about the effectiveness and legality of the program, which Pauley said, "vacuums up information about virtually every telephone call to, from or within the United States." That information is "metadata" - the phone numbers involved, when calls were made and how long they lasted.

The two judges had starkly differing understandings on how valuable that program is.

Pauley, whose courtroom is just blocks from where the World Trade Center towers stood, endorsed arguments made in recent months by senior government officials that the program might have caught the Sept. 11, 2001, hijackers had it been in place before the attacks.

Leon, in Washington, took the opposite view, saying the government had failed to make the case that the program is needed to protect the nation.

The presidential review group took a middle ground, although it seemed to lean toward Leon's position. It said the security agency "believes that on at least a few occasions" the program "has contributed to its efforts to prevent possible terrorist attacks, either in the United States or somewhere else in the world." But it added that its own review suggested that the program "was not essential to preventing attacks," and that less intrusive measures would work.

The group recommended that bulk storage of telephone records by the government be halted in favor of "a system in which such metadata is held instead either by private providers or by a private third party."

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