If you want a picture of the future, imagine a boot stamping on a human face-forever.
— George Orwell, 1984
Christopher Brauchli
It was easier to write the opinion by ignoring history. And it was only one part of his opinion. Nonetheless, he thought it was so important that it became the first thing he said right out of the box, as it were.
Judge William H. Pauley III, a District Court Judge for the Southern District of New York, dismissed a complaint filed by the American Civil Liberties Union and others. The A.C.L.U. complaint alleged that what is known as the N.S.A.’s bulk telephony metadata collection program is unconstitutional. Judge Pauley found it was not and, in so finding, wrote an opinion that in all important aspects arrived at the opposite conclusion from an opinion issued 11 days earlier by Judge Richard J. Leon in Washington. Judge Leon said the N.S.A. program was “almost Orwellian” and was probably unconstitutional.
Judge Pauley begins his opinion with the following sentences: “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. “
Judge Pauley discussed how the N.S.A. was unable to capture the phone number of one of the highjackers living in San Diego who the N.S.A. mistakenly believed was living overseas. With telephony metadata, the judge observed, the agency would have known the highjacker was living in San Diego and could have given that information to the F.B.I. Presumably, although not stated by the judge, that might have enabled it to thwart the 9/11 attack. Judge Pauley then observed that the government “learned from its mistake” and, among other things, launched “a bulk telephony metadata collection program” which, he said: [O]nly works because it collects everything.”
In concluding as he did that “conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda” Judge Pauley chose to ignore post 9/11 reports that the intelligence community had plenty of information to “detect diffuse filaments” without metadata collections. What was lacking was the competency citizens had a right to expect from those charged with protecting the country.