China's version of Newsweek magazine featuring a front-page story on American intelligence leaker Edward Snowden is sold at a news stand in Beijing on July 8, 2013. The White House issued a blistering criticism of China over its decision to let Snowden leave Hong Kong for Russia, saying by doing so it hurt U.S.-Sino relations. -- UPI/Stephen Shaver | License Photo
WASHINGTON, Jan. 5 (UPI) -- If President Obama adopts the recommendations of his blue-ribbon panel on reforming the National Security Agency's massive surveillance program, will the political and legal challenges to that program evaporate like the last few drops of single-malt whiskey in a glass?
At the core of the recommendations: The NSA would no longer collect the phone records of tens of millions of Americans. Instead, the records, essentially phone numbers, would be kept by the phone companies themselves and the NSA would need a court order to get a number on a case-by-case basis.
When the president announced Dec. 20 the administration was considering the reform recommendations, the American Civil Liberties Union, one of the principal challengers, praised the development.
"We welcome the willingness of the president to consider ending the government's bulk collection of Americans call records," ACLU Executive Director Anthony Romero said in a statement. "Many other reforms are necessary to bring these programs in line with the Constitution, including the passage of the USA Freedom Act. We continue to believe that Edward Snowden should be applauded, not prosecuted, for initiating this historic debate about surveillance and privacy. Revisions to the NSA's sweeping surveillance authorities are necessary and a long time coming."
The USA Freedom Act, introduced in October by Sen. Patrick Leahy, D-Vt., and Rep. Jim Sensenbrenner, R-Wis., "ends bulk surveillance under the Patriot Act," the ACLU said. "The collection of business records under the Patriot Act, the pen register statute and national security letters [usually sent by the FBI demanding information on national security matters] would be limited to only those records pursuant to an investigation of someone suspected of being a terrorist or in contact with one. By ending indiscriminate surveillance, it refocuses law enforcement energy to programs and investigative techniques that actually work to stop terrorism."
There are a lot of ifs in this reform scenario. There is no guarantee Obama will accept the bipartisan panel's recommendations. And even if he did, there is no guarantee the ACLU or other challengers would be content with the information in private instead of government hands.
And then there is the ruling in New York last month by U.S. District Judge William Pauley dismissing the ACLU's constitutional challenge to the NSA program.
Pauley, in an opinion hailed by the administration, said the program was a "blunt tool that only works because it collects everything." If that ends, can the program even be worthwhile?
The ruling in New York was in direct contrast to a ruling Dec. 16 by a different federal judge in Washington.
In the nation's capital, U.S. District Judge Richard Leon issued a preliminary injunction blocking the U.S. government's massive collection of phone records, which it conducts without a warrant, but stayed the injunction pending a government appeal.
Leon, a George W. Bush appointee, said a suit by Larry Klayman, the founder of Freedom Watch, has "demonstrated a substantial likelihood of success" on the basis of Fourth Amendment.
The amendment bans unreasonable searches.
Though Leon granted Klayman's request for a preliminary injunction, he stayed his order pending an appeal by the Obama administration because of the "significant national security interests at stake in this case and the novelty of the constitutional issues."
The U.S. Justice Department immediately issued a statement saying the program is constitutional.
"We've seen the opinion and are studying it," department spokesman Andrew Ames said. "We believe the program is constitutional as previous judges have found. We have no further comment at this time."
The program's actions are approved by a special panel, the Foreign Intelligence Surveillance Court, made up of federal judges.
The suit by Klayman and several other plaintiffs targets PRISM, a secret electronic surveillance data mining program operated by the National Security Agency since Congress authorized it in 2007.
Leon's ruling caused quite a stir in Washington, but it conflicts with the U.S. Supreme Court's ruling in Smith vs. Maryland. Leon blithely dismissed Smith as out of step with modern reality, but it's doubtful if appeals courts can be so dismissive.
In that 1979 Smith case, a Supreme Court majority said the installation of a "pen register" was not a search within the meaning of the Fourth Amendment, and did not require a warrant. A "pen register" collects the numbers called from a phone on an individual basis -- much like PRISM does on a mass basis.
The majority opinion by the late liberal Justice Harry Blackmun said the Fourth Amendment guarantee comes into play only when someone has a "legitimate expectation of privacy" that a government action has violated. People don't expect their phone numbers to be private -- they're giving that information to the phone company after all -- as opposed to the content of their conversations.
Pauley, a Bill Clinton appointee, took a position in direct opposition to Leon's -- almost as if he were answering the other judge in his opinion.
"The privacy concerns at stake in Smith were far more individualized than those raised by the ACLU," Pauley wrote in his Dec. 17 opinion. And, "the business records created by Verizon are not 'plaintiffs' call records.' Those records are created and maintained by the telecommunications provider, not the ACLU. Under the Constitution, that distinction is critical because when a person voluntarily conveys information to a third party, he forfeits his right to privacy in the information."
Despite the ACLU argument, "the Supreme Court did not overrule Smith," Pauley said. "And the Supreme Court has instructed lower courts not to predict whether it would overrule a precedent even if its reasoning has been supplanted by later cases. ... Clear precedent applies because Smith held that a subscriber has no legitimate expectation of privacy in telephony metadata created by third parties. ... Inferior courts are bound by that precedent."
Right at the beginning of his 53-page opinion, Pauley cited the Sept. 11, 2001, terror attacks.
"While Americans depended on technology for the conveniences of modernity, al-Qaida plotted in a seventh-century milieu to use that technology against us," Pauley said. "It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaida."
Prior to those terror attacks, the NSA intercepted seven calls by eventual hijacker Khalid al-Mihdhar, who was living in San Diego. The calls went to an al-Qaida safe house in Yemen.
Though the calls were intercepted, the NSA could not capture the man's telephone number identifier.
"Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States," Pauley wrote. "Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the [FBI] of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.
"The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world," Pauley said. "It launched a number of counter-measures, including a bulk telephony metadata collection program -- a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data."
The judge cited several instances instances in which a "nascent plot" was headed off by NSA metadata information sent to the FBI, including planned attacks on the New York subway system and the New York Stock Exchange.
Pauley conceded there is a "natural tension" between protecting the nation and civil liberties.
"Edward Snowden's unauthorized disclosure of Foreign Intelligence Surveillance Court orders has provoked a public debate and this litigation," Pauley said. "While robust discussions are under way across the nation, in Congress and the White House, the question for this court is whether the government's bulk telephony program is lawful. This court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of government" -- Congress and the Obama administration -- "to decide."
SCOTUSBLOG.com's veteran reporter, Lyle Denniston, predicted the contrasting Leon and Pauley rulings make it more likely the U.S. Supreme Court will have to get involved.
Speaking of Snowden, opinions differ sharply on just what he is.
Snowden took his suitcase full of secrets to those bastions of democracy, China and Russia, instead of Congress or all major U.S. media. Currently he has temporary amnesty in Russia, but Jesselyn Radack of the Government Accountability Project, his legal adviser, said Snowden feels vindicated by the Obama panel's recommendations.
"I feel very much that that vindicates Snowden as a whistle-blower. It's very rare that a whistle-blower has the imprimatur of both a federal court decision and a hand-picked White House internal review panel corroborating, basically, all that he has disclosed," Radack told CBS News' "Face the Nation" last Sunday.
In a "Dear ACLU Supporter" message also sent to the media Dec. 18, the ACLU's Romero called Snowden a "great American.
"Edward Snowden is a great American who deserves full immunity for his patriotic acts. And we're proud to serve as his legal advisers," the message said. "When Snowden blew the whistle on the NSA, he single handedly reignited a global debate about government surveillance and our most fundamental rights as individuals."
The message cites Leon's opinion in Washington, calling that ruling a possible "tipping point for the American public to fully realize the service Snowden provided to all of us by exposing the NSA's illegal spying program."
Without Snowden, there would have been no Leon decision, no legislation in Congress and no presidential review of the NSA.
"That's why ... we're calling on President Obama to provide full immunity for Snowden, so he can come back home to the country he loves, free from persecution."
Newspaper editorial boards have begun to support Snowden, including the New York Times, which said last Wednesday: "When someone reveals that government officials have routinely and deliberately broken the law, that person should not face life in prison at the hands of the same government. That's why Rick Ledgett, who leads the NSA's task force on the Snowden leaks, recently told CBS News that he would consider amnesty if Mr. Snowden would stop any additional leaks. And it's why President Obama should tell his aides to begin finding a way to end Mr. Snowden's vilification and give him an incentive to return home."
Retired U.S. Air Force Gen. Michael Hayden, a former NSA and CIA director, took the opposite view.
The NSA is "infinitely weaker" as a result of Snowden's revelations of classified information, Hayden told "Face the Nation," adding, "This is the most serious hemorrhaging of American secrets in the history of American espionage."
"I used to say he was a defector, and there's a history of defection -- actually, there's a history of defection to Moscow, and that he seems to be part of that stream. I'm now, kind of, drifting in the direction of perhaps more harsh language," Hayden said.
When asked about his new Snowden label, Hayden responded, "traitor."