'Matter and antimatter'
Based on their decisions, it's hard to believe that two respected federal district judges were considering the same set of facts regarding the National Security Agency's data collection.
The decision rendered at the end of December by Judge William H. Pauley III in New York was 180 degrees from one issued Dec. 16 by Judge Richard J. Leon of the U.S. District Court for the District of Columbia. Orin S. Kerr, a law professor at George Washington University, described the opinions as "matter and antimatter."
In the earlier decision, Judge Leon characterized the NSA's program to be "almost Orwellian" and concluded that it is unconstitutional. He also noted that the NSA had failed to provide any evidence that the program had played any role in thwarting or even investigating terrorism.
Judge Pauley, however, cited testimony by former FBI Director William Mueller that, if the program had been in effect prior to the terrorist attacks of Sept. 11, 2001, it might have helped locate at least one hijacker in the United States who had made phone calls to Yemen.
The NSA will appeal Judge Leon's decision to the U.S. Court of Appeals for the District of Columbia, and the American Civil Liberties Union will appeal Judge Pauley's decision to the Second Circuit Court of Appeals in New York. If the opinions are upheld, the Supreme Court likely would have to resolve whether the program is constitutional.
A presidential commission, meanwhile, has recommended that the NSA "metadata" collection be halted, and that any records it seeks should be obtainable only with court orders.
Congress need not wait for the courts to mandate changes that better protect privacy while ensuring that NSA operations actually serve the cause of national security.