I don’t like to be a wet blanket, but at the risk of mixing metaphors, I’m going to throw some cold water on the decision last week in American Civil Liberties Union v. Clapper, which held that the National Security Agency’s vast telephone metadata collection program is illegal.
While the ruling by the 2nd Circuit Court of Appeals is a clear advance for civil liberties–and the ACLU legal team that engineered it has every right to be proud–the advance, in fact, is modest and incremental.
To understand why I’m less enthused than some others, let’s deconstruct what the decision actually said as well as what it didn’t say.
The ACLU, in concert with its New York affiliate–the New York Civil Liberties Union–filed the case to have the NSA’s mammoth and indiscriminate surveillance sweeps conducted under Section 215 of the Patriot Act declared unconstitutional. They also sued to have the sweeps invalidated under the terms of the statute itself for exceeding the scope of the statute, and they sought an injunction to stop the sweeps. They succeeded only with their statutory claim.
The unanimous 97-page opinion was penned by Judge Gerard Lynch–and joined by Judges Robert Sack and Vernon Broderick with a separate 13-page concurrence by Sack. Both Lynch and Sack are circuit court members, but Broderick is a district court judge designated to sit on the panel. (Appellate courts do this to give lower-court judges experience and to relieve staffing shortages.) All three were appointed to the bench by former President Bill Clinton. But then, so was William H. Pauley III, the U.S. District Court judge for the Southern District of New York whose earlier pro-government order dismissing the case was under appeal.