We reported last week on how Judge Leon in the District of Columbia ruled against the government, preliminarily, on NSA mass data surveillance. I cautioned against the media assumption that the ruling would survive:
The judge issued a preliminary injunction, but stayed his decision pending appeal. While many people are taking the decision as obvious, in fact the Judge had to weave his way around Supreme Court precedent and other court decisions to the contrary. Celebrations that the decision will hold up are premature.
Now a Judge in New York has ruled the opposite way.
As before, because I am so busy on other things, I’ll have to defer to Prof. Orin Kerr, writing at Volokh Conspiracy, for a summary:
The opinion is here, and it’s pretty much the opposite of Judge Leon’s recent opinion. Judge Pauley rules that the Section 215 telephony metadata program is lawful both as a matter of statutory and constitutional law. Based on our experience with lower court rulings on Obamacare, I gather that Pauley’s opinion will draw only a small amount of attention relative to Judge Leon’s contrary ruling. But it’s an interesting contrast, both on the legal merits and as a matter of judicial rhetoric.
Politico has more:
Citing the Sept. 11 attacks, a federal judge on Friday found that the National Security Agency’s bulk collection of millions of Americans’ telephone records is legal, a valuable part of the nation’s arsenal to counter the threat of terrorism and “only works because it collects everything.”U.S. District Judge William Pauley said in a written opinion that the program lets the government connect fragmented and fleeting communications and “represents the government’s counter-punch” to the al-Qaida’s terror network’s use of technology to operate decentralized and plot international terrorist attacks remotely.”This blunt tool only works because it collects everything,” Pauley said. “The collection is broad, but the scope of counterterrorism investigations is unprecedented.”
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