Judge Rules on NSA From Under His Bed

By Charles Pierce, Esquire

28 December 13

et us congratulate U.S. District Judge William Pauley III. It cannot be easy issuing an important ruling while hiding under your bed.

Pauley's decision, which upheld the NSA's hoovering up metadata and which also directly contradicts the the ruling last week by another federal judge that the program is likely unconstitutional, which virtually guarantees the issue will go up at some point to the nine wise souls in Washington, reeks of the kind of institutional panic that gave us the PATRIOT Act, enhanced interrogation techniques, rendition, black prisons, the war in Iraq, and the NSA's expanded powers themselves. It's straight out of The Dark Side. The judge's decision might as well have been set to music by Toby Keith.

"The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is...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."

Leave aside the fundamental misunderstanding of how 9/11 happened inherent in Judge Pauley's statement of the facts. The subtext of what he is saying is simply that terrorists from "a seventh-century milieu" -- actually, strip clubs in Tampa and an apartment in Hamburg -- have rendered the Fourth Amendment obsolete in a dangerous and interconnected world, and that only our all-too-human, and curiously error-prone, heroes of the surveillance state can keep us safe. Oh, and also, we common folk shouldn't ever have known about this anyway.

"It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets-including the means and methods of intelligence gathering-could frustrate Congress' intent."

Because when it comes to safeguarding the civil liberties of Americans against their government, the congressional oversight panels have been real rocks, especially since The Day Everything Changed.

I think Pauley's point of view probably will prevail when the Supreme Court gets a hold of this issue. The Fourth Amendment has a dwindling constituency in Washington.