NSA Surveillance 'Lawful,' Clinton Appointee Rules in Stiff Dismissal of ACLU Lawsuit

In a decision replete with 9/11 references, New York judge hands legal victory to government.

A demonstrator dresses as President Barack Obama during a protest against National Security Agency surveillance on Oct. 26, 2013 in Washington, D.C.
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U.S. District Court Judge William Pauley on Friday dismissed a lawsuit brought by the American Civil Liberties Union against the bulk collection of American phone records by the National Security Agency.

The New York-based Clinton appointee ruled the program is "lawful," a stark contrast from U.S. District Court Judge Richard Leon's Dec. 16 ruling on a similar lawsuit that the program is "almost Orwellian" and almost certainly violates the Fourth Amendment.

Leon, a George W. Bush appointee, handed a comprehensive victory to NSA opponents, but Pauley offered a thorough legal defense of the once-secret surveillance program.

"No doubt, the bulk telephony metadata collection program vacuums up information about virtually every telephone call to, from, or within the United States," Pauley wrote. "That is by design. ... As the September 11th attacks demonstrate, the cost of missing such a thread can be horrific."

[READ: NSA Lawsuit Attorney: Ignore White House Panel]

Pauley's 53-page decision came after Nov. 22 arguments presented by the ACLU, which sought a preliminary injunction against the program, and the Department of Justice, which asked for the case to be dismissed.

After that hearing, one of the four ACLU attorneys in the courtroom, Brett Max Kaufman, told U.S. News Pauley seemed to share Leon's skepticism - expressed at a hearing four days earlier - about the government's reliance on the Supreme Court's 1979 Smith v. Maryland decision, a cornerstone of the legal justification for surveillance.

In Smith v. Maryland the court found a criminal defendant did not have a reasonable expectation of privacy over a list of phone numbers he dialed during a two-day period. Leon rejected its extension to the NSA phone program when he granted a preliminary injunction to Freedom Watch founder Larry Klayman - but Pauley upheld its legal ramifications.

Although Pauley recognized the far more sweeping nature of the NSA's metadata dragnet, he wrote phone service customers forfeit their right to privacy over call records by sharing the information with a third party - phone companies - and compared subsequent NSA searches of its phone record database to lawful DNA database queries.

[BROWSE: Editorial Cartoons About NSA Surveillance]

Because of the legal precedent, Pauley found the program does not violate Americans' Fourth Amendment rights and wrote the ACLU's assertion that it violates the First Amendment by chilling the exercise of free speech therefore "relies on a highly attentuated chain of possibilities," borrowing language from the U.S. Supreme Court's February decision in Clapper v. Amnesty International. That ruling, which came before the summer disclosure of the sweeping NSA surveillance by former agency contractor Edward Snowden, held the plaintiffs could not sue because they could not prove their records were being collected.

"The collection of breathtaking amounts of information unprotected by the Fourth Amendment does not transform that sweep into a Fourth Amendment search," Pauley wrote.

Heavily citing the 9/11 terrorist attacks, Pauley agreed with the potential utility of the program and found it did help prevent terror attacks, as the government claims. Leon ruled the government could not prove the program did so.

Pauley also cited voluntary self-disclosure of the NSA about misuse of databases as one reason he believes the program does not violate Americans' rights.

[RELATED: Read Judge Leon's NSA Decision Here]

The New York judge said the future of the program is "for the other two coordinate branches of government to decide."

The ACLU quickly announced its intention to appeal to the U.S. Court of Appeals for the Second Circuit.

"We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government's surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections," said Jameel Jaffer, the ACLU's deputy legal director. "As another federal judge and the president's own review group concluded last week, the National Security Agency's bulk collection of telephony data constitutes a serious invasion of Americans' privacy."