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Split of Authority on NSA Phone Program

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Jennifer Smith reports for the WSJ:

The National Security Agency's bulk collection of data from phone companies is legal, a federal judge has ruled, dismissing a significant court challenge to the practice and setting the stage for a bigger legal battle over secret surveillance programs.

U.S. District Judge WIlliam H. Pauley III in Manhattan sided with the government in his decision Friday, calling the collection program a "vital tool" to combat terrorism and deeming it "the Government's counter-punch."

The ruling stands in conflict with a decision issued earlier this month in a separate case by a federal judge in the District of Columbia who said the program "almost certainly" violated the Constitution.

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One cautionary aspect of all of this, and I don't think it's ever been definitively dealt with in the caselaw, is the possibility (i.e., certainty) of abuse. Whether or not Joe the Plumber was worthy of censure or disdain, the bottom line is that he was abused by a rogue employee's disclosure. The rogue employee was slapped on the wrist. And, the courts have held that Joe the Plumber was not entitled to recompense.

The same goes true in cases where NSA employees were listening in on phone calls made by romantic interests--they were merely disciplined, and it is unlikely that the targets of the illicit snooping were ever advised about the abuses.

Also, look at the IRS leaks of confidential donor information.

Often the people in charge will have zero motivation to punish these wrongdoers.

That is part of the calculus.

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