Columbia Law School, Federal Intelligence Surveillance Act, Federal Intelligence Surveillance Court, Fourth Amendment, Gerard Lynch, National Security Agency, Patriot Act, President Obama, Telephone metadata
Appeals Court Says “No” to the NSA
The federal appeals court in New York ruled today that the National Security Agency’s massive telephone metadata collection program is not authorized by the Federal Intelligence Surveillance Act of 1978, as amended by the Patriot Act of 2001. This was the first appellate ruling on the validity of the metadata collection program; two previous trial court rulings conflicted, one upholding and one rejecting the program.
The decision is comprehensive and careful, no doubt explaining why it comes eight months after the case was argued. The author of the unanimous decision was Judge Gerard Lynch, a meticulous judge who may be the perfect judge to write this decision.
Judge Lynch graduated from Columbia Law School in 1975 with an extraordinary academic reputation. When I got to Columbia in 1978, Lynch was said to have earned the highest grade-point average in the law school’s history. After graduation, Lynch won a highly prestigious clerkship with a federal appeals judge in New York, followed by an even more highly prestigious clerkship with Supreme Court Justice William Brennan, Jr., who was quite possibly the most influential liberal jurist in American history.
After clerking for two years, Lynch joined the Columbia Law School faculty. I took his classes in contract law and criminal law, and had a variety of extracurricular interactions with him as well. I knew Lynch to be personally politically liberal – my recollection, for instance, is that he was one of only two faculty members to support an early resolution prohibiting discrimination in the law school based on sexual orientation.
Lynch did not hold himself above the law students as most of his colleagues did. He could be seen around campus in his jeans and Oxford shirts, and students addressed him as Jerry. I distinctly remember standing in line behind him at the university gym weight room, waiting to use the Universal lat-pulldown machine.
Like his Columbia colleagues, Lynch was a top-level legal scholar; unlike most of his colleagues, he was also a top-level legal teacher. He won a student-voted teaching award in 1994, and was the first law professor to win a university-wide award for teaching in 1997.
Any good legal mind must be able to understand and articulate the positions on all sides of a legal issue, including not just the legal arguments, but also the social, economic, political, personal and moral context and implications of those arguments. And Professor Lynch had a very good legal mind.
As Lynch’s career progressed, he focused increasingly on criminal law. He took a leave from Columbia from 1980 to 1983 to serve as a high-level prosecutor in the United States Attorney’s Office in Manhattan, and again from 1990 – 1992 to run the office’s criminal division.
President Clinton nominated Professor Lynch to the federal district court in Manhattan in 2000, and Judge Lynch was President Obama’s first nominee to the federal appellate courts to be confirmed in 2009. On the bench, Judge Lynch has distinguished himself by his careful reasoning and his thorough and respectful treatment of both sides of every case. His judicial decisions do not reveal the personal liberalism I heard him express when he was in his late 20s.
Along comes the NSA case, and the first appellate decision on the telephone metadata program is written by an academically brilliant and impeccably credentialed judge with a record of careful and thorough consideration of all sides of an argument, who carefully detaches his personal political beliefs from his judicial reasoning, and who was appointed by the president whose program he is called on to assess.
The decision is 97 pages long, but it’s not a painful read. It begins with a discussion of the historical and legal background, a factual summary of the NSA’s telephone metadata program, and a review of the procedural history of the case at hand.
On page 25 begins the legal analysis. But before getting to the good stuff, Judge Lynch had to decide whether the plaintiffs had legal “standing” to challenge the NSA program (they did) and whether the federal statute in question precluded judicial review other than by the semi-secret Federal Intelligence Surveillance Court set up in 1978 (it didn’t).
Finally on page 53, we get to the question whether the NSA telephone metadata collection program was authorized by the Patriot Act. The whole deal comes down to a provision referred to as section 215, which authorizes the federal government to ask the Federal Intelligence Surveillance Court for an order requiring the production of a records “relevant to an authorized investigation” conducted under the Patriot Act.
The federal government argued, and Judge Lynch agreed, that the section 215 authorization was broad – as broad as a grand jury’s authority to subpoena records to assist in its investigation. The basis for this conclusion was evidence in the legislative history of the Patriot Act that Congress intended to give federal investigators the same kinds of tools that they already had to investigate ordinary crimes.
Then follows a 20-page discussion of the meaning of the word “relevant” as used in section 215, at the end of which Judge Lynch concludes that the NSA’s collection and compilation of metadata from all or nearly all telephone calls within the United States and to or from the United States brings in data that might someday be relevant to an authorized investigation, but the vast bulk of which is not relevant to any such investigation at the time that it is collected and compiled.
Having concluded that the metadata collection program is not authorized by the Patriot Act, Judge Lynch repeats several times that it is unnecessary to decide whether the metadata collection program violates the Constitution, specifically the First and Fourth Amendments.
But having insisted that he was expressing no opinion on the constitutional questions, Judge Lynch nonetheless discussed them at length. At first blush, this apparently extraneous discussion seems very unjudicial, and very un-Lynch-like. And furthermore, it’s not quite true that the discussion states no opinion about the constitutional issues: it begins with a statement that “the Fourth Amendment claim, in particular, presents potentially vexing issues.” In other words, Judge Lynch offers the opinion that the Fourth Amendment issue is not obvious, but difficult.
Finally, having found that the NSA’s program is certainly illegal, he declined to issue an injunction ending the program “at least at this point.” He “notes” that section 215 is scheduled to expire in a few weeks (on June 1, to be exact). Judge Lynch says that it is “prudent to pause to allow an opportunity for debate … while Congress decides whether and under what conditions [the program] should continue.”
In that passage is the key to Judge Lynch’s discussion of the constitutional issues he insisted he did not express an opinion on. Back in the constitutional discussion, Judge Lynch had twice emphasized the importance of the legislative role in constitutional issues.
First, Judge Lynch referred to the Fourth Amendment’s ban on “unreasonable” searches and seizures, and asserted that a Congressional determination in the next few weeks that sweeping collections of telephone metadata is a “reasonable” accommodation of the competing interests of privacy and national security would carry weight “at least with us, and, we assume, with the Supreme Court as well.”
Second, Judge Lynch proposed that “the primary role” is for “our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary.” Preferably, it would be “only after such debate, with due respect for any conclusions reached by the coordinate branches of government,” that the judiciary would decide.
Judicial restraint is often claimed as a conservative value. Judge Lynch has given us a worthy illustration of liberal judicial restraint.