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U.S. judge upholds NSA phone surveillance program

Man wears a mask of U.S. President Obama during a protest in support of former U.S. spy agency contractor Snowden in Berlin

A National Security Agency (NSA) data gathering facility is seen in Bluffdale, about 25 miles (40 kms) south of Salt Lake City, Utah, December 17, 2013. REUTERS/Jim Urquhart

A National Security Agency (NSA) data gathering facility is seen in Bluffdale, about 25 miles (40 kms) south of Salt Lake City, Utah, December 17, 2013.

CREDIT: REUTERS/JIM URQUHART

(Reuters) – A federal judge ruled that a National Security Agency program that collects records of millions of Americans’ phone calls is lawful, calling it a “counter-punch” to terrorism that does not violate Americans’ privacy rights.

Friday’s decision by U.S. District Judge William Pauley in Manhattan dismissed a lawsuit by the American Civil Liberties Union challenging the program, whose existence was first disclosed by former NSA contractor Edward Snowden.

It also diverges from a December 16 ruling by U.S. District Judge Richard Leon in Washington, D.C., who said the “almost Orwellian” program was likely unconstitutional. He ordered the government to stop collecting call data on the two plaintiffs in that case.

The program also faces a legal challenge from the Electronic Frontier Foundation, a data privacy group. Any split among federal judges about the program’s constitutionally could ultimately be resolved by the U.S. Supreme Court.

In a 54-page decision, Pauley said the program “vacuums up information about virtually every telephone call to, from, or within the United States.”

But he said the program’s constitutionality “is ultimately a question of reasonableness,” and that there was no evidence that the government had used “bulk telephony metadata” for any reason other than to investigate and disrupt terrorist attacks.

“This blunt tool only works because it collects everything,” Pauley wrote. “Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely. The bulk telephony metadata collection program represents the government’s counter-punch.”

Pauley denied the ACLU’s motion for a preliminary injunction. He said the public interest tilts “firmly” in the direction of the government, whose interest in combating terrorism “is an urgent objective of the highest order.”

President Barack Obama has defended the surveillance program but has indicated a willingness to consider constraints, including whether to give control of metadata to phone companies or other third parties. Intelligence officials have said this could prove costly and slow investigations.

The ACLU had no immediate comment on the decision. White House Spokesman Josh Earnest declined to comment. A U.S. Department of Justice spokesman said the department is pleased with the decision.

RUBBER STAMP, OR VITAL WEAPON?

Leaks by Snowden have detailed the breadth of U.S. electronic surveillance and sparked a debate over how much leeway to give the government in protecting Americans from terrorism.

Snowden is now in Russia under temporary asylum.

Larry Klayman, a conservative legal activist who brought the case before Judge Leon, called Pauley’s ruling “an outrageous decision that ignores the legitimate fears of the American people and in effect rubber stamps a police state.”

Pauley was appointed to the bench by President Bill Clinton. Leon was appointed by President George W. Bush.

Rep. Peter King, a New York Republican and chairman of the House Homeland Security Subcommittee on Counterintelligence & Terrorism, in a statement said Pauley’s decision “preserves a vital weapon for the United States in our war against international terrorism.”

The case is American Civil Liberties Union et al v. Clapper et al, U.S. District Court, Southern District of New York, No. 13-03994.

BY JONATHAN STEMPEL

NEW YORK Fri Dec 27, 2013

(Reporting by Jonathan Stempel in New York; Additional reporting by Mark Hosenball, Ros Krasny and Nate Raymond; Editing by Leslie Gevirtz and Dan Grebler)

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