American Vista

by Kieran Healy on December 27, 2013

U.S. District Court Judge William Pauley has ruled that one of the NSA’s mass metadata collection programs is lawful. On p.25 of the ruling itself, there’s a nice Appalling Vista moment:

Regarding the statutory arguments, there is another level of absurdity in this case. The ACLU would never have learned about the section 215 order authorizing collection of telephony metadata related to its telephone numbers but for the unauthorized disclosures by Edward Snowden. Congress did not intend that targets of section 215 orders would ever learn of them. And the statutory scheme also makes clear that Congress intended to preclude suits by targets even if they discovered section 215 orders implicating them. It cannot possibly be that lawbreaking conduct by a government contractor that reveals state secrets—including the means and methods of intelligence gathering—could frustrate Congress’s intent. To hold otherwise would spawn mischief: recipients of orders would be subject to section 215’s secrecy protocol confining challenges to the FISC, while targets could sue in any federal district court. A target’s awareness of section 215 orders does not alter the Congressional calculus. The ACLU’s statutory claim must therefore be dismissed.

Of course this specific claim, this particular ruling, and this one case are all located in a much broader legal and political crisis. But the logic is striking all the same. “To hold otherwise would spawn mischief”, indeed.

Here’s a piece by me from earlier this year on the power of metadata.