Freedom or Safety – Chapter Three

May 10, 2015 § Leave a comment


Last Thursday the Second Circuit rendered a unanimous decision in ACLU v. Clapper.  They reversed the dismissal of ACLU’s suit challenging the NSA’s metadata surveilance program.  They ruled  the Patriot Act did not authorize it.  They discussed. but did not rule on. ACLU’s claims based on the First and Fourth Amendments to the Constitution.  They described the various defenses offered by the government in support of the Judge Pauley’s decision to dismiss the suit.  They disapproved of each of those defenses and came close to stating some of those claims were deliberately deceptive.

The panel consisted of Judges Sack, Lynch and a District Court Judge sitting by appointment.  Two were appointed by Obama; one by Clinton.

Judge Sack wrote a concurring opinion.  He included the following quote that neatly stated the nature of this legal argument.

Safety from external danger is the most powerful director of national
conduct. Even the ardent love of liberty will, after a time, give way to its
dictates. The violent destruction of life and property incident to war, the
continual effort and alarm attendant on a state of continual danger, will
compel nations the most attached to liberty to resort for repose and
security to institutions which have a tendency to destroy their civil and
political rights. To be more safe, they at length become willing to run the
risk of being less free.
The Federalist No. 8 (Alexander Hamilton).

Hamilton is not my favorite Founder but his warning is prescient.

Previous Essays

I have expressed my own ideas about the surveillance program in three posts on this blog:

Technology, the Law and the Constitution; The Surveillance Debate;  and A Second Thought About Surveillance.
The first one of these essays discussed the District Court’s decision in this case and compared it with another District Court decision, Klayman v. Obama, which ruled squarely opposite to  the ACLU  case .  Klayman was appealed and, on April 7, 2014, the Supreme Court declined to review it.  In this 2d Circuit decision, the Court adopts some, but not all, of Judge Leon’s reasoning in his Klayman decision.

As stated, I agree with Hamilton, but, ironically, his Federalist Party sponsored the Alien and Sedition Act , a broad-based threat to individual liberty that stained the first decades following the adoption of the Bill or Rights.   That history is a perfect example of how rhetorical promises are forgotten when they conflict with political ambitions.

I fear the consequences of arming the government with ways to snoop and then threaten to expose the private behavior of any  person in this country who becomes a political problem.  I do not trust our criminal justice system, even less our political system to observe appropriate limits on that kind of power.  The McCarthy decade;  the “drug wars” and the DEA ‘s methods; the “Global War on Terror”; the CIA’s record of deception and interference in the internal affairs of other countries – this is only a partial list of my reasons for distrusting our government with unbridled power.   The Patriot Act granted power to one of the most reckless Presidents in the history of the USA – a man who served as a compliant puppet of Dick Chaney and Donald Rumsfeld.  Secret access to the telephone habits of our entire population is  power with which no person or group of persons should be trusted.  I

It is true we live in perilous times, but we should not be so distracted by fears of foreign peril that we surrender ourselves to the discretion of politically powerful people in our government.  To do so is especially dangerous now, when our political system has been corrupted by legalized bribery – when the so-called “money primary” has become more important than the electoral process in the selection of our choices of rulers.

The Decision

For those of you who want to read the 2d Circuit opinion, here is a link:  Clapper   This link will require some manipulation.  It will take you to the 2d Circuit’s web page.  At the top you can click on “decisions; then use the drop-down arrow to pick the period of time.  The ACLU decision came down on May 7, 2015.  The opinion is a long one (about 100 pages).  I spent over four hours highlighting the essential parts, but I finally gave up.  There may be some way for WordPress (the program I use for this blog) to link to a highlighted Adobe copy of a court decision.  I’ve searched online and read the instructions.  I think it is a problem because this computer is a Mac and the instructions are for Widows – I’m not sure.  What I have finally concluded:  two college degrees and 50+ years of law practice have equipped me with less capability in the field of computer technology than the average 12-year-old and I don’t have a 12-year-old handy.  So, dear readers, you will have to skim through the opinion and find the interesting parts.

Here are some hints:  The Court describes the kind of information that can be gleaned from knowing the date, time, duration, location and phone number of a caller and receiver.  The way a clever analyst can use that kind of information is interesting.  The Court, in a footnote, cites an article from Science magazine that is part of that discussion.  Use Control-F to search for “Science”.

The background of the argument is interesting.  Do a word search for “Snowden” (BTW  don’t use the quotes)

You can skip most of the discussion of “preclusion” – it’s not very interesting and the Court rules that it doesn’t apply.

The Court’s demolition of the government’s claims that it needs everyone’s telephone records but it doesn’t actually “review” any except those “relevant” to a legitimate inquiry is interesting.  The Court reminds the government that the 4th Amendment prohibits unreasonable “search and seizure” of a citizen’s property and information.  I have not before seen a court use the distinction between “search” and “seizure” so effectively.

The judges who wrote the majority and concurring opinions are good writers.  The legalese is not there.  They write plain English, so it won’t be too bad to read their opinions.  Not as good as Holmes or Brandeis, but not bad.

I urge you to read the relatively short concurring opinion by Judge Sack.  He includes some interesting history of the “Pentagon Papers” episode.  He also gave me the quote from the Federalist with which I began this item.


This decision from the Second Circuit reverses the District  Court decision with which I disagreed.  Also, the Supreme Court’s denial of cert. in the appeal of the District Court decision with which I did agree, gives me some satisfaction that some of the damage done by he Patriot Act may be eventually undone.

[For non-lawyers:  “cert.” is short for certiorari, Latin for “to be more fully informed”.  When an appellate court wants to review a lower court decision to see if, in the appellate court’s opinion, it was correctly decided, the appellate court grants a “writ of certiorari” – a demand that the lower court send to the appellate court the entire record of its consideration of the case to “fully inform” the appellate court the bases for the lower court’s decision.   When the appellate court denies an application for certiorari, it leaves the lower court decision in tact and effective.]

During the next few days, the Congress will debate ways to amend the Patriot Act.  The analysis in the 2d Circuit’s decision should provide some resources to those who are seriously trying to restore some respect to the Constitution.  It will be messy.  Some in the GOP will vote against granting any power to Obama, regardless of any concern for, or understanding of, the merits of the argument.  Some Libertarians like Rand Paul and some Tea Partiers will be motivated by some flavor of general anti-government ideology.  And some, like Ron Wyden, will probably present my own reaction to the phone surveillance program.  The fact that Mitch McConnell wants to keep everything as is assures me that I am on the right side of this argument.


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