While 9/11 may be a fading memory for other Americans, in New York the scar it left on our skyline will remain forever. Our police department reminds us too that the terrorists who brought down two of our skyscrapers have not abandoned their efforts to attack us: Only a year ago, two Pakistan-born brothers were arrested in Florida for plotting to bomb city landmarks including Wall Street and Times Square.
Which gives us special reason to be distressed by DC federal Judge Richard Leon’s ruling this week ordering the National Security Agency to stop collecting meta-data on telephone and Internet activity. The NSA does this under Section 215 of the Patriot Act, just one of the responses aimed at addressing the consensus that one big reason 9/11 happened was the failure of our intelligence community to “connect the dots.”
But by forbidding the NSA from collecting the dots in the first place, Judge Leon brings us back to the mentality that prevailed before 9/11. The good news is that the judge stayed his ruling to allow the government to appeal.
We’ll let the lawyers sift through the judge’s arguments for deeming the program unconstitutional. Mostly, he rejects what has been the operative precedent thus far, Smith v. Maryland (1979), in which the Supreme Court held that using a device to record the numbers called from a specific phone is not a search under the Fourth Amendment. Judge Leon surely is right that the collection technology the NSA uses today is far more advanced than what was involved in Smith. But it’s not clear to us that this changes the substance of the case.
The Fourth Amendment, after all, prohibits only searches that are not reasonable. The meta-data the NSA collects is entirely reasonable in that it prevents attacks, there is no other way to connect these dots and the US failure to connect the dots was a big reason we were attacked.
Remember, too, that failure was no accident. It was the result of deliberate decisions by those in authority. These notably include the infamous “wall” between criminal and intelligence investigators that was raised even higher during the Clinton years by then-Deputy Attorney General Jamie Gorelick.
Make no mistake: Judge Leon has just laid the foundation for a brand new wall.