Today, a New York Federal Court Judge weighed in on the NASA  operation, they collects the numbers called from all of our phones: when those calls are made and for how long. It is a defeat for the American's civil liberties union which sued to stop the NASA. And Judge William Polly wrote: While Robust discussions are under way across the country. In congress and at the White House, the question for this court is whether the government bulk telephony metadata program is lawful, this court finds it is. 

One catch, though, just a week ago, another Federal Judge Richard Leon looking at the very same facts reached exact opposite conclusion. He wrote: I can't imagine a more indiscriminate and arbitrary invasion than this systematic high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval. 

 

So the question now, how is square these two rulings and who gets the job doing that? Senior legal analyst Jeffery Tooben gets the job tonight trying to answer both. 

So break this down for us, Jeffery. This is really interesting. A couple of weeks ago, we had Judge down in Washington appointed by or nominated bench, by George W. Bush who says this is against Fourth Amendment, this will not stand, we can't hoover up all this metadata and keep it forever. This judge, here in New York, two weeks later, appointed by Clinton disagrees. 

 

It's a pretty amazing situation. I've never seen something precisely like this. Here you have two judges,  exactly legal issue inside a couple of weeks, deciding it completely differently.I think the big difference is that the judge here in New York said "There's a supreme court precedent that controls this case." There is a Supreme Court 1979 said " When you dial the phone, you are telling the phone company what number you are dialing, you'll see it on you bill. It is not something you have any right to expect privacy,"

 

But again, 1979 when we had rotary phones  (correct) and the founder of Facebook was negative five (correct).

 

Well, that's what the judge in Washington says, that may be the precedent on the books but it's obsolete now. So, I'm gonna find this a violation of privacy. You know, appeals courts don't take too kindly to district court judges saying. You know the Supreme Court is wrong. So I think the Judge in New York may have the advantage on appeal, and I think the odds favor although is not a sure thing. This metadata program being upheld. 

 

And one is saying it works, the other  saying it's worthless. 

 

This was the thing that I found the most surprising in this whole opinions. Because Judge Leon in Washington said " It's been proved that this hasn't stopped any terrorists attacks."  Judge Polly here in New York has a list of terrorist events, would be attacks that it was stopped. " I don't, I mean, that's just frankly a mistery to me and I hope that gets sort it out as this case proceeds because it's obviously very important question does this thing do any good.

 

Well, that's it. Final question then. It has to wind this way through the appellates. May be a year before it hits scotus, right? So knowing what you know of the bench, as the Supreme Court stays the way it's now. How do you think they come down on this?

 

I think they uphold it. You know, national security is something the judges take very seriously and they recognize that they don't have expertise in this area, they defer to the executive branch to the experts on this areas. And I think ultimately that's how it would turn out. Now, it may also be that President Obama modifies the program in some way on his own initiative. But the Courts, I think, will ultimately go the way of saying " We're not gonna interfere, this is a political question for executive branch." But as we seeing, different judges see it  differently and I could be wrong. It's happened before. 

 

I've been a fan to your work for a long time. It's great to share a set with you, Jeffery.

 

It's good to see you, Bill.