NSA’s Surveillance of Americans Survives ACLU’s Federal Challenge

MANHATTAN (CN) - Government collection of Americans' cellphone metadata is legal and necessary to combat terrorism, a federal judge ruled Friday, dismissing the ACLU's challenge of the program.

"The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is," U.S. District Judge William Pauley wrote. "While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda."

Pauley nevertheless admitted that the collection program, "if unchecked, imperils the civil liberties of every citizen."

This had been one of the cornerstones of American Civil Liberties Union's lawsuit. Filed in June after Edward Snowden leaked details about the program to the public, the complaint alleged that the NSA's collection of metadata from every Americans' cellphone overstepped the government's authority under Section 215 of the Patriot Act.

In a 54-page opinion, Pauley noted that the National Security Administration intercepted seven calls made by Sept. 11 hijcker Khalid al-Mihdhar from his home in San Diego to an al-Qaida "safe house" in Yemen, but that authorities could not get his telephone number identifier.

"Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation of the fact that al-Mihdbhar was calling the Yemeni safe house from inside the United States," Pauley wrote.

Undermining that argument, ProPublica reported in June that U.S. intelligence agencies knew al Mihdhar's identity "long before 9/11 and had the ability find him, but they failed to do so."

Former Sen. Bob Graham, the Florida Democrat who led the Senate's intelligence committee, described those missed opportunities in detail in a joint congressional report and in the 9/11 Commission report, Pro Publica said.

Pauley ignored such findings, however, in noting that the government has since "learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program - a wide net that could not find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data."

During the trial, the government argued that its surveillance program played an important role in "ongoing efforts to defend the nation against the threat of terrorist attack," Pauley said.

Civil liberty concerns meanwhile are best left to "the other two coordinate braches of government to decide," he added.

The rulings from the once-secret Foreign Intelligence Surveillance Court that Snowden leaked ordered phone companies to turn over metadata concerning calls to and from millions of Americans' cellphones.

A separate federal court ruled earlier this month that the data-collection program is "likely unconstitutional."

The ACLU highlighted this inconsistency in a statement promising to appeal.

"We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government's surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections," ACLU deputy legal director Jameel Jaffer said in a statement. "As another federal judge and the president's own review group concluded last week, the National Security Agency's bulk collection of telephony data constitutes a serious invasion of Americans' privacy. We intend to appeal and look forward to making our case in the Second Circuit."

The federal government has not responded to a request for comment.

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