Analysis: Is NSA Surveillance Constitutional?

[Commentary] In the span of just ten days, we have seen two diametrically opposed judicial rulings about the legitimacy of the government's controversial bulk metadata collection program, the existence of which we learned about thanks to Edward Snowden.

Although the two opinions apply the same law and essentially the same facts, they are so contradictory they cannot be reconciled. One judge will be proven right and the other proven wrong, although I suspect it may be 2015 before the final tally is recorded. US District Judge Richard Leon in Washington boldly declared the National Security Agency's bulk metadata collection program to be "likely unconstitutional," as applied to individual citizens whose phone records were collected and stored.

On Friday, Dec 20, 2013, US District Judge William Pauley in New York boldly declared that very same surveillance program is constitutional as applied to the American Civil Liberties Union (ACLU), the phone records of which also were collected and stored. I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws. And that, of course, says a great deal about the nature of the NSA's program itself and its symbolic role in the conflict America faces as it teeters back and forth between privacy and security. Taken together, these two manifestos represent the best arguments either side so far has been able to muster. If you trust the government, Judge Pauley's the guy for you. If you don't, Judge Leon makes more sense.

That two judges would hold such contrasting worldviews is either alarming (if you believe the law can be evenly applied) or comforting (if you believe that each individual judge ought to be free to express his conscience). Where does that leave the rest of us? The program still rolls on --unencumbered by the statutory and constitutional confusion that now reigns over it. We'll spend the bulk of 2014 watching the fight over it play out in at least two separate federal appeals courts. And then, unless there is a form of unanimity between and among those appeals courts that clearly is lacking between and among Judges Leon and Pauley, we'll see sometime in 2015 the first big terror law case in front of the Supreme Court since 2008.

[Dec 27]