Here at Ordered Liberty in late July, I opined that the national-security right was losing the debate over the National Security Agency’s controversial telephony “metadata” program. On Monday, a federal district judge in Washington ruled that the program violates the Fourth Amendment and must be dismantled. The decision, naturally, prompted standing ovations from our counter-counter-terrorism cognoscenti. The applause will fade rapidly.
Judge Richard Leon’s 68-page opinion is lawless – long on populist vent, short on jurisprudence. It is likely to have no substantive effect: Leon stayed his ruling until it can be reviewed by the D.C. Circuit Court, which shouldn’t need more than a nanosecond to reverse it. That is not because the appellate judges will be unsympathetic to the concerns that animate Judge Leon. It is because lower federal courts are honor-bound to follow controlling Supreme Court precedents, a duty the D.C. Circuit is apt to take more seriously than did Judge Leon.
Still, the fact that Leon was moved to rule as he did – and, in particular, to credit the NSA program with little if any material contribution to the prevention of terrorist atrocities – powerfully affirms what we posited here months ago: national-security conservatives, who dominated counterterrorism policy in the decade after the 9/11 attacks, are now losing the policy debate in the court of public opinion. In the end, that is the court that matters.
As Judge Leon’s opinion outlines, “metadata” is information about our telephone communications but not the content of those communications. Significantly, the metadata collected and stored by the NSA does not include identifying details, such as the names and addresses of the interlocutors. Essentially, the government is collecting the phone numbers involved in, and the duration of, the communications. The purpose is to connect the phone numbers and calling patterns of suspected foreign terrorists with phone numbers and calling patterns used in this country. Had this procedure been in effect before 9/11, it might have tipped off investigators, say, that overseas phone numbers used by al Qaeda emirs like Khalid Sheikh Mohammed were in contact with U.S. phone numbers that could, by further investigation, be connected to Mohamed Atta & Co.
The main point is that, contrary to all the shrieking about “domestic spying” and how the NSA is watching your every move, only your number is in the NSA’s database, not you.
Government Misrepresentations Anger the Judges
To be sure, we should assume that phone usage information of everyone in the country is being collected. On that score, Judge Leon was understandably miffed by the Obama Justice Department’s disingenuous suggestion to the contrary.
Eric Holder’s minions contended that Verizon Wireless customers lacked standing to challenge the program because the government had not previously owned up to collecting records from the company. As Judge Leon pointed out, however, the government’s justification for the NSA program is that it must gather in one government database all telephony records collected from all the different provider networks.
The idea is that if the telecoms kept their own records rather than turning them over to the NSA, the records (a) would not be searchable with the same rapid efficiency and (b) could be prematurely destroyed (since the companies do not have the same incentive as government investigators to store the records for years on end). That of course is true … but if the whole point is to collect all the metadata in one place and ensure full coverage of the potential terrorist-communication universe, it is grossly misleading to suggest, as Justice’s standing claim did, that perhaps the government had neglected to include Verizon Wireless and its tens of millions of customers. Judge Leon was not amused, exclaiming with an exasperation rarely expressed in court opinions: “Candor of this type defies common sense and does not exactly inspire confidence!”