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Editorial: Time to redefine intelligence gathering

Two divergent legal decisions, one in Washington, D.C., another in New York City, are setting up the National Security Agency’s broad phone surveillance program for yet another round in the courts.

Both recent decisions are set to head to federal appeals courts following rulings by federal judges.

The latest of these, announced Dec. 27, was that of U.S. District Judge William H. Pauley III in New York. Pauley upheld the legality of the spying program, in direct contrast to the opinion of U.S. District Judge Richard Leon, issued earlier this month. The Washington, D.C., jurist ruled that the program likely violates the U.S. Constitution’s Fourth Amendment ban on unreasonable search.

It seems more than likely that whatever decisions come out of the appellate courts, this issue will eventually end up in the U.S. Supreme Court. And that’s exactly where an issue of such broad national import should reach it’s final decision. This is simply too big an issue for a lesser court.

Most of the popular media reports on the most recent decision simply say Pauley concluded the program was a necessary extension of steps taken after the Sept. 11 terrorist attacks. Thankfully, the New York Times went a bit further in explaining the decision.

Pauley based his decision on a 1979 Supreme Court precedent, Smith v. Maryland, in which the court ruled that a burglary suspect’s right to privacy did not extend to phone numbers dialed.

Leon relied upon a 2012 precedent to reach his conclusion, United States v. Jones, in which the Supreme Court rejected the use of a GPS device to track a drug suspect over the course of a month.

In her concurrence with the majority, Justice Sonia Sotomayor wrote that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

Given the technological advances that have resulted in many means by which public and private organizations may monitor the actions and behavior of individuals today, Sotomayor may be right.

If we are to protect the rights of the individual promised under the provisions of the United States Constitution, then the nation may need to reconsider the broad powers given to government in the wake of the 2001 terror attacks.

We should not surrender our individual rights as a matter of expediency — or even for the sake of security.

Consider this: The 2003 report on the Sept. 11 attacks by the House and Senate Intelligence committees concluded that “the FBI had much more information about the individuals linked to the Sept. 11 hijackers than it had previously acknowledged and officials missed key opportunities to apprehend two of the hijackers,” newspapers reported at the time.

Information was in hand before Sept. 11, 2001, that might have headed off the attacks. And it was collected with only the tools available before the PATRIOT Act advanced the transformation of the United States into a police state.

In this information-

driven era, it is more important than ever to aggressively protect the individual rights that our forefathers granted to us.

If we continue to fail in that effort, then we must ask if we can still define ourselves as a free nation.

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