COLLEGE STATION, Jan. 17, 2014 − There is understandable confusion in the country over NSA surveillance thanks to contradictory court rulings and President Obama’s press conference today, says a Texas A&M University professor, but the bottom line is the program is still legal as of now and Obama made no major changes to it.
Ron Sievert, a law professor and director of the Certificate in Advanced International Affairs Program at Texas A&M’s Bush School of Government and Public Service, who specializes in national security law, says citizens must understand that the program revealed by Edward Snowden doesn’t monitor the content of telephone conversations or emails and stores, but doesn’t review, the numbers-called data of average American citizens. “The data is just maintained for quick access to check telephone connections when the intelligence community receives a credible lead on a suspected terrorist,” he contends.
Last Dec. 27, in ACLU v. Clapper, U.S. District Judge William Pauley ruled the surveillance is not only legal, but necessary to prevent another 9/11. The New York judge noted that obtaining the records does not constitute a “search” and therefore probable cause is not needed to review it. The reason he held that it is not a search is because the data is willingly shared with a third party (the phone company) and the Supreme Court held in 1979 in Smith v. Maryland that there is no expectation of privacy in information you knowingly provide to another.
Twelve days earlier, however, U.S. District Judge Richard Leon in Klayman v. Obama held that the collection of phone data likely violates constitutional protections against unreasonable search and seizure. Leon even went so far as to call the program “Orwellian.” Sievert states that Leon may have been influenced by Supreme Court Justice Sotomayor, who, “in dicta approved by many of her colleagues, obliquely questioned the long-established, third-party doctrine in a 2012 case on vehicle transponders [Jones v. U.S.],” Sievert observes.
“Judge Leon locked on Sotomayor’s language as a reason to no longer apply the third-party doctrine to collected telephone records.
Leon’s often publicly cited reference to the fact that metadata had not led to the discovery of any ‘imminent’ terrorist attacks ignores the fact that NSA provided him quite a list of terrorists who were identified by these phone records before they were ever able to plan ‘imminent’ attacks. The judge noted this list in his opinion but few media outlets reported it.”
Sievert says he is very concerned about Judge Leon’s decision but expects that if the issue reaches the current Supreme Court they would support him and overrule the 1979 case.
“The Supreme Court has a history of completely reversing itself depending on the ideological makeup of the Court, while pretending they are adhering to prior precedent,” he contends. “In the last decade, relying upon abstractions and verbal gymnastics, they found that the president had no authority to order military commissions, after holding in 1942 that he had such authority [Ex Parte Quirin contra Hamdan v. U.S.] and that enemy combatants had the right to habeas appeal to civilian courts after finding in 1950 that ‘Nothing in our Constitution extends such a right….The practice of every modern government is opposed to it. [Johnson v. Eisentrager contra Boumediene v. Bush].’”
“The logical result of the reasoning of Sotomayor, Leon and their colleagues could very well be that in the future, courts will demand probable cause before the government can access phone, credit and bank records,” Sievert notes. “If these judges had been involved in organized crime and intelligence cases before they were appointed they would understand that in the early stages, investigators seldom have accumulated the substantial quantity of evidence that amounts to probable cause.
They basically have reasonable suspicions as a result of informant and other information that require a competent government agent to check out the background of a suspect individual. They need phone, credit, bank and transponder data, all currently obtained when relevant under the third-party doctrine, to establish the building blocks of probable cause. It is only when this higher standard is reached that more intrusive tools like wiretaps of content, or home and business searches can be employed.
“Many European nations actually consider this U.S. probable cause standard far too high when the safety of their populations is on the line and regularly conduct even intrusive searches and monitor wire content in terrorism and espionage cases based simply on indications of terrorist activity or reasonable suspicion alone,” adds Sievert.
He says President Obama was stuck with the personal knowledge he has gained as president that has shown him how valuable this intelligence can be and the concerns of citizens that data collection could be abused in the future even though it has not been improperly utilized to date.
“He understood that if the data is stored with the NSA then people will be upset that the ‘government’ is holding it, but that if the phone companies and ISPs maintain it, then the data will be too widely dispersed to access and require costly storage costs,” he says. “His solution was to store it with an outside party, but he left it to the Attorney General to find someone. He also decided that before the data could be accessed by the government, agents would have to secure a court order. He did not name a standard for the court order, although to date, the data has been accessed only when the director of the NSA has found reasonable suspicion to do so.”
Sievert maintains that this is a much more workable standard than demanding facts constituting probable cause, which are simply not available in the early stages of an investigation.
Sievert states that he is not confident in any future decisions of the Courts on these matters because there is an active debate in this country as to what is a “reasonable expectation of privacy.” “We get pop-ups all the time, we know our data is being shared with commercial advertisers and others, we really have no privacy, yet many fear the government possessing the same data,” he notes.