U.S. News

09.19.13

Pentagon Papers’ James C. Goodale: The Outrageous NSA Opinion

The secret surveillence court has weighed in on the NSA—but its decision, unfortunately, is more political than legal, writes Pentagon Papers lawyer James C. Goodale.

There was no need for the secret FISA court to have issued its opinion this week stating the NSA program is legal. Its only purpose, arguably, was to influence a political debate as to the program’s future.

Technically the court was renewing authority to obtain bulk metadata from telephone companies. This authority must be renewed every three months, and such has taken place for many years. Taking advantage of this technicality, Judge Claire D. Eagan, a federal judge in the Northern District of Oklahoma, wrote a 29-page opinion justifying what the FISA court had done over the last seven years.

The opinion states that the next action on the program must be taken by Congress since only a political question remains as to whether the program should be continued. This was because the court concluded the program was totally legal.

This opinion can be viewed as no more than a public-relations release for the court and, by extension, the Obama administration. Its timing is notably suspect. Renewals of this authority have taken place as a matter of course for years without the need for a constitutional ruling. It puts the court in the middle of the debate as to whether the program should be continued. The opinion therefore is more political than legal.

Further, the opinion seems to be an attempt to preempt the several legal actions brought against the government for its metadata program. Those actions raise the issue as to whether the metadata programs are constitutional. This is the very same issue the secret court has decided on its own.

The crucial difference between the secret court ruling and the ruling to be issued by the federal courts, where metadata suits have been brought, is that in the latter courts there is an adversarial process. There is no such process in the secret court. The government makes its argument before the court and there is no one there to oppose it.

Accordingly, the FISA court judge has not had the benefit of hearing the other side of the argument. This is quite apparent from Judge Eagan’s opinion; for example, she does not even mention last year’s Supreme Court decision involving GPS on which the ACLU relies in its briefs.

The FISA court judge has not had the benefit of hearing the other side of the argument.

As the ACLU points out in its lawsuit against the government, the metadata program is quite intrusive. A metadata program collects the time and place of phone calls, the person to whom the calls have been made, but not the phone calls themselves.

Nonetheless, by putting this information together, the metadata will reveal many details of the call which implicitly trace why the calls have been made.

Judge Eagan does not address any of these concerns. She merely points out that because the Supreme Court ruled many years ago that metadata taken from one person satisfied the Fourth Amendment, that retention of metadata from hundreds of thousands of people can be similarly justified.

Nor does she address the First Amendment questions involved in obtaining this data. If callers know this metadata will be taken from them, they won’t make calls, thus impeding their First Amendment rights.

Also ignored in this opinion is the statement made before Congress by the NSA director, Gen. Keith Alexander, that he would gladly consider abandoning the metadata program for one whereby he obtains metadata directly from the phone company by a subpoena. This would be different than the delivery of bulk metadata material directly to the NSA as presently happens.

This proposal would be a less restrictive way of obtaining the same information. When one analyzes First Amendment rights, one always looks for a less restrictive way of accomplishing the same result. If there is a less restrictive way of accomplishing the same end, a statute such as the metadata statute becomes unconstitutional.

Judge Eagan also ignores the lies and perjuries that have surrounded discussion of this program by the NSA with Congress. DNI director James Clapper lied to Congress when he told it the NSA did not have a surveillance system. He said it was the least “untruthful” response he could think of.  NSA director Keith Alexander also lied to Congress about the same details.

Last week, Judge Reggie Walton, no friend of civil liberties, also released an opinion in which he concluded he had been lied to by the NSA with respect to the metadata program.

Judge Eagan noted there had been problems with the metadata programs, but they had been “resolve[d].” In light of the constant lies disclosed by the NSA over the last several months, there is a question as to whether Judge Eagan’s statement is correct.

Judge Eagan’s opinion should be taken for what it is. It is a political statement defending what FISA has done over the last several years. It is not a legal decision that forecloses the serious questions about the metadata program. That question should be decided by the federal courts with adversarial representation. It should not be decided by a secret court where only the government is heard.