Homeland Security Watch

News and analysis of critical issues in homeland security

January 16, 2014

Engaging Uncertainty

Filed under: Catastrophes,Disaster,Infrastructure Protection,Preparedness and Response,Resilience,Strategy — by Philip J. Palin on January 16, 2014

Water-Order     Gov. Tomblin (right) and Jeff McIntyre, West Virginia American Water

Late on January 9 not much was known about the chemical leak into the Elk River. No one seemed to know how much of the chemical had poured into the river or been sucked into the water system. No one could be sure what sort of health-risks might arise from skin contact or ingesting water tainted with the obscure chemical. There was uncertainty about when the contamination had begun and how long it might take to remove the contamination. When 300,000 people might again be able to consume their tap water was beyond reasonable prediction.

Our species survived — and eventually thrived — largely based on our weird ability to imagine the future and recognize steps to achieve (or avoid) what we imagine. When this imagination is anchored in experience or knowledge (indirect-experience) it is a source of confidence, even solace. When the anchor is ripped up and our fragile craft is swept into a cyclone of uncertainty… well, different folks respond in different ways. But there is a tendency for fear to proliferate, which can unwind in atypical behaviors and amplify uncertainty.

In the first two days of the West Virginia water crisis there were many indicators of imagination untethered. Rumors spread. Conspiracies were alleged. Even worse to come was envisioned. But mostly fears were contained, rumors corrected, and a covenant of social trust and mutual concern was, if anything, strengthened.

A 500 word blog — okay, I’m not always so concise — is not the right place to undertake a full analysis of what happened and did not happen in terms of community resilience. But I advocate this being done.

My hypothesis is that what happened mostly involved the expression of preexisting social networks and relationships.

But I also want to credit — and ask others to more rigorously explore — the role of leadership that was courageous enough to embrace uncertainty.

I was in eastern West Virginia (outside the impact area) from Sunday through Tuesday, close enough to get a bit more of the local media angle. I was impressed by the calm, realistic, and consistently understated approach of the Governor, Earl Ray Tomblin, and the President of West Virginia American Water, Jeff McIntyre.

I never heard them claim to be in control. I did hear them state clearly the sources of uncertainty. They outlined in writing and in their remarks what was being done to engage the uncertainty. They did not try to distract citizens from the uncertainty with accusatory vents. They did focus on what citizens could do for themselves and their neighbors. They recognized progress. They did not over-promise.

Here is one of the first statements made by the Governor (bold highlights by me).

We urge all residents in the affected areas to follow West Virginia American Water Company’s “do not use” order until it is lifted. This includes water companies supplied by West Virginia American Water in this area. If you live in one of these areas, do not use tap water for drinking, cooking, cleaning, washing, or bathing. At this time, I do not know how long this will last.

Don’t neglect the use of that personal pronoun.  Next he said:

We ask that all West Virginian’s check on their friends, families, and neighbors—especially those with small children and seniors living in their households—to make sure they have enough water, food, and supplies. If you—or anyone you know–experiences symptoms including: nausea, vomiting, dizziness, irritation of the eyes and skin, seek care immediately.

Here’s what a citizen can do, even should do.  The most important action that can be taken is to practically and personally renew the human relationships on which we all depend.  Begin some new relationships if you can.  Then, here’s what  your government is doing on your behalf (he said more, this is one of four paragraphs):

I’ve mobilized and deployed all appropriate government assets and resources, including our Office of Emergency Management, our experts at DEP, DHHR Bureau of Public Health along with our National Guard—who are out doing health and wellness checks across the area along with collecting, testing and monitoring the water. The federal government is also providing assistance. The President has approved my request to issue a federal emergency declaration to provide FEMA resources. County emergency offices are also working 24-7.

Your basic human needs can and will be addressed:

If you are low on bottled water, do not panic. Help is on the way. We are taking every measure to provide water to you. There is no shortage of bottled water. Supplies are moving into the area as we speak. We encourage all West Virginians in affected areas to contact their local emergency management office for water distribution sites.

Please be active in helping yourself and others:

If you or your organization would like to donate supplies, please contact your local emergency center. If you are in the Kanawha Valley Area, we are organizing a call to action drive for needed items—including water, sanitizer, wipes, liquid baby formula, paper plates, plastic utensils, and microwavable meals. The drive will take place on the Boulevard in front of the State Capitol from 2:30 – 6:30 today. It is important to emphasize, water and supplies are available—there is not a persistent shortage of bottled water.

We are grateful for the offers of support from private firms and charities—and our fellow West Virginians—to aid in providing relief.

This is the second time I have listened-in to Governor Tomblin deal with a basically no-notice and hard-hitting disaster.  The first time was the late-June 2012 Derecho.  In that multi-state event I was able to compare and contrast his approach to that of other governors, mayors, and such.   When others were attacking, blaming, and threatening, Governor Tomlin was thanking and encouraging and informing.

I think there are some lessons to be learned.

January 15, 2014

Cyber Potpourri – Presentations, Pirates, and Posturing

Filed under: General Homeland Security — by Arnold Bogis on January 15, 2014

The Brookings Institution recently held an event for the release of the book, “Cybersecurity and Cyberwar: What Everyone Needs to Know.” Brookings describes the event:

On January 6, the Center for 21st Century Security and Intelligence and Governance Studies at Brookings launched the new book Cybersecurity and Cyberwar: What Everyone Needs to Know. The first panel featured co-authors Peter W. Singer and Allan Friedman discussing their book and the key questions of cybersecurity – how it all works, why it all matters and what we can do. A second panel featured some of the leading journalists on the cybersecurity beat today, exploring the challenges of reporting on a new domain and explaining its complexities to the public.

I think the authors do a pretty good job describing the numerous issues wrapped up in the cyber space without resorting to any “OMG, a Cyber-Pearl Harbor is just around the corner!” moments.

You can watch both panels here:

 

Slate posted an excerpt from the book, ” What can (real) pirates teach us about cybersecurity?

In centuries past, the sea was a primary domain of commerce and communication over which no one actor could claim complete control, much like the Internet today. While most just used the sea for normal commerce and communication, there were also those who engaged in bad deeds, again much like the Internet today. They varied widely, from individual pirates to state militaries with a global presence. In between were state-sanctioned pirates, known as privateers. Parallel to today’s “patriotic hackers” (or the private contractors working for government agencies like the National Security Agency or Cyber Command), privateers were not formally part of the state but licensed to act on its behalf. They were used both to augment traditional military forces and to add challenges of identification (attribution in cyber parlance) for those defending far-flung maritime assets.

These pirates and privateers would engage in various activities with cyber equivalents, from theft and hijacking, to blockades of trade (akin to a “denial of service”), to actual assaults on economic infrastructure and military assets.

The authors not only make the comparison between activities, but also point to the potential of pursuing similar eradication strategies.

The cyber parallel today, again, is that all netizens have a shared global expectation of freedom of action on the Internet, particularly online trade, just as it is ensured on the open ocean. If you knowingly host or abet maritime pirates or privateers, their actions reflect back on you. The same should be true online. Building those norms will motivate both states and companies to keep a better check on individual hackers and criminals (the pirate equivalent). It will also weaken the value of outsourcing bad action to patriotic hackers (the latter-day privateers).

– – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – –

Snowden is the gift that keeps on giving…at least to national security reporters.  In the New York Times, David Sanger and Thom Shanker have a piece describing the NSA’s ability to hack computers that aren’t even connected to the internet (a security measure known as “air-gapping.).

The National Security Agency has implanted software in nearly 100,000 computers around the world that allows the United States to conduct surveillance on those machines and can also create a digital highway for launching cyberattacks.

While most of the software is inserted by gaining access to computer networks, the N.S.A. has increasingly made use of a secret technology that enables it to enter and alter data in computers even if they are not connected to the Internet, according to N.S.A. documents, computer experts and American officials.

The technology, which the agency has used since at least 2008, relies on a covert channel of radio waves that can be transmitted from tiny circuit boards and USB cards inserted surreptitiously into the computers. In some cases, they are sent to a briefcase-size relay station that intelligence agencies can set up miles away from the target.

Of course, the U.S. doesn’t like this sort of activity when it’s done to us:

The N.S.A. calls its efforts more an act of “active defense” against foreign cyberattacks than a tool to go on the offensive. But when Chinese attackers place similar software on the computer systems of American companies or government agencies, American officials have protested, often at the presidential level.

Documents obtained by Mr. Snowden indicate that the United States has set up two data centers in China — perhaps through front companies — from which it can insert malware into computers. When the Chinese place surveillance software on American computer systems — and they have, on systems like those at the Pentagon and at The Times — the United States usually regards it as a potentially hostile act, a possible prelude to an attack. Mr. Obama laid out America’s complaints about those practices to President Xi Jinping of China in a long session at a summit meeting in California last June.

At that session, Mr. Obama tried to differentiate between conducting surveillance for national security — which the United States argues is legitimate — and conducting it to steal intellectual property.

January 14, 2014

Private-public collaboration essential to water restoration effort

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With the active, coordinated, nearly  synchronous involvement of neighborhoods and individuals across the region the Kanawha Valley is currently engaged in a process of flushing and restoring a 1700-mile water network.  A continually updated map is available here.

This is an amazing example of “whole community” in action.

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on January 14, 2014

This is the sixth in a series of anticipated posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.

–+–

THE PREAMBLE

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

–+–

There are two references to “general welfare” in the Constitution. In addition to the Preamble, there is the following from Article I, Section 8:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

Historical, political, and legal understandings of general welfare differ.  Madison argued that the Constitution was explicit regarding narrow enumerated powers.  Hamilton used the general welfare references to justify much broader authority by the national government.

Prior to United States v Butler (1936) the Supreme Court seemed convinced by Madison.  But in that New Deal-related decision the majority found:

The clause confers a power separate and distinct from those later enumerated is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. … It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.  

The ghost of Hamilton has seemed to haunt the Supreme Court ever since.

Accordingly taxing and spending — and evidently borrowing — are not limited by enumerated powers or the Tenth Amendment or in any other constitutionally required way.  Madison’s ghost has, perhaps, been awakened from peaceful sleep.   Strange things have been seen at Montpelier.

From this evolution of the  general welfare clause has emerged much of the contemporary federal apparatus including (it seems to me) Homeland Security, critical infrastructure protection, national preparedness, whole community resilience, FEMA grants, disaster assistance, and much more.

January 13, 2014

Water everywhere, but not a drop to drink

MONDAY EVENING UPDATE:

Several media outlets — and some private emails — indicate some areas of the Kanawha Valley are being told their tap water is again safe to consume.  Different areas are being “cleared” in a step-by-step process of flushing and multiple-testing.

–+–

Last week an unknown amount of the chemical 4-methylcyclohexanemethanol leaked from a storage tank into the Elk River near Charleston, West Virginia (one estimate referenced 5000 gallons, another estimate is 7500 gallons). About one mile downstream from the discharge is the intake for a water system serving most of nine counties and up to 300,000 persons.

By Thursday evening a “Do Not Use” order was announced. Water customers were instructed to avoid bodily contact with tap water. Water has continued to flow for sanitation and firefighting (and to flush the system).

Even 24 hours after the spill the contamination risk was not well-understood. While not thought to be toxic, the chemical can cause irritation of the eyes and skin. Ingestion could cause nausea, gastrointestinal distress, and liver damage.

The chemical is known to be harmful in concentrations of 500 parts per million. By Friday evening levels of the chemical’s concentration in the Elk River near the water intakes had dropped from 2 to 1.7 parts per million.  On Saturday it was announced the “Do Not Use” order would not be lifted until a comprehensive testing process found concentrations of less than 1 ppm throughout the Kanawha Valley water network.  On Monday morning several spot-checks are reporting levels below 1 ppm.

The water network involves over 100 storage tanks and 1700 miles of pipeline.  On Saturday the water company explained, “Concentric flushing beginning at a central location and moving out to the far ends of the distribution system is expected to take several days but will not be simultaneous based upon the construction of the system. The timeline may vary based on geographic location, customer demand and other factors that impact water usage and availability.”

Retail supplies of bottled water quickly sold out on Thursday night and Friday.  But by Saturday most stores had been resupplied and some major retailers were providing customers water at no charge.  Several public distribution locations had also been established.  FEMA has shipped over 1.5 million liters into West Virginia.  Proactive efforts are being made to ensure drinking water distribution to the elderly, disabled, and other vulnerable populations.  Both private and public supply chains will continue to surge water into the greater Charleston area.

This is a still developing situation.  Lots of lessons — and pseudo-lessons — are likely to emerge.  With appropriate trepidation, let’s begin to gather some observations and hypotheses.

Prevention and Mitigation

In my personal experience secondary-effects on water systems are especially consequential. I have seen urban areas emerge from a detailed analysis of a nuclear detonation in what seemed a survivable condition only to have the water system fail and unwind an entire region.

As with many — most — modern systems of supply urban water systems are nodal networks.   These networks are innately more efficient on good days and innately predisposed to catastrophic cascades on bad days.  Trouble at any node is likely to propagate to other nodes.   The nodes — electrical, logistical, water, whatever — are especially susceptible to no-notice concentration stresses.   (This is what is currently speculated to have happened at the UPS Worldport on the weekend before Christmas causing one of the best supply chains in the world to nearly collapse.)

A significant aspect of the problem in West Virginia is that the — largely unknown — chemical was released in considerable quantity so close to the node.  There was not sufficient time-and-space for dilution to do its magic before the whole system was contaminated.  Electrical, computing, fuel, and other networks are vulnerable to analogous risk.

Response

West Virginia is on the edge of four regional supply chain networks.  This is so rough to be at least a bit misleading, but think of large circles radiating out from Washington-Baltimore, Pittsburgh, Cincinnati, and Charlotte/Roanoke.  Depending on the commodity or sector, these circles overlap in West Virginia.

I expect — but it is only an informed guess — that the spike in demand signals began emerging after Thursday orders and Friday morning deliveries were processed.  So it took until Friday morning to seriously engage the unexpected explosion in demand.  Then it was late Friday or early Saturday before sufficient commercial stocks of bottled water could be redirected into the network.

Again just an informed guess, but Kroger, Walmart, Sysco, and  McLane are probably the principal distributors of bottled water in West Virginia.  They will also be the principal sources for sanitizers, baby wipes, paper plates, and related products  For players this size, there is an existing strategic capacity to surge supply.  While 300,000 with a no-notice loss of drinking water is non-trivial it does not exhaust capacity… especially because this is on the edge of four regional supply networks, each with very deep resources. The challenge is more an issue of transport than supply.  So… by Saturday the commercial supply chain was aware of the problem, reorganizing to supply the problem, and largely successful doing so.

Provision of water by local fire departments, state emergency resources, and FEMA is a crucially important complement to the commercial supply chains.  Red Cross, churches and similar organizations are especially important to filling the demand-and-supply gap for non-mobile populations.

My off-the-cuff analysis would not be nearly so benign if a similar event hit a much more densely populated area that was served by a less diverse supply chain.

Recovery

Contamination events are especially challenging.  How do you prove a negative?  Rumors will fly faster than facts.  Bottled water is going to be more popular in the Kanawha Valley than ever before, enjoying sustained demand long after chemical concentrations fall below 1 part per million.

Nodes are important here too.  What and who are the psycho-social nodes in this (these) communities?  What relationships have already been established?  How can those relationships be energized in this instance to deal with this issue?  Will these communities respond as victims, as survivors, as heroes? And what, in retrospect, will they decide to learn?

One of my West Virginia friends who contributed to this report offered,  “Tell your readers that if they want to help they need to plan their next vacation or convention for Charleston.” Basic human needs are being addressed, but the long-term economic consequences will be very troubling.

Much more to come.  This crisis continues. But in any case, Coleridge was right:

Water, water, everywhere,
And all the boards did shrink;
Water, water, everywhere,
Nor any drop to drink….

He went like one that hath been stunned,
And is of sense forlorn:
A sadder and a wiser man,
He rose the morrow morn.

Rime of the Ancient Mariner

January 10, 2014

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on January 10, 2014

In 1975 this was the second day of the winter cyclonic event that dropped over 2 feet of snow across the Upper Midwest and spawned forty-five tornadoes across the South.  On  January 10 this included an F-4 in Mississippi that killed nine.

This morning up to 300,000 residents of Charleston, West Virginia and nine nearby counties are being told not to drink, cook, wash or bathe using tap water.  A chemical spill in the Elk River has contaminated the water system.  Flushing and fire suppression are still possible.

On this day last year bomb blasts in Pakistan killed 130 and injured many more.

What’s on your mind related to homeland security?

January 9, 2014

Homeland security: A self-definition

Filed under: General Homeland Security — by Philip J. Palin on January 9, 2014

For the last quarter-century my wife and I — and until the last five years, our children — have engaged in a recurring year-end ritual of visiting family in Kentucky, Illinois, and this year Washington State.  We are usually on the road for ten or more days.

I can and do continue working, usually waking at 4:00 AM Eastern no matter where I am (which is a problem when visiting the Pacific Coast).  This is a flexibility most do not enjoy.  It is a benefit that allows us to have more time with widely dispersed family and friends.  We can travel to them.

But each year this atypical flexibility also prompts questions about, “What does Phil do, that allows him to stay away?” (Away from where? I could ask.) The questions are especially persistent — and usually directed to my wife — if I am suddenly on the phone or lock myself in a room with my computer.

For most of these years I have been an executive with or co-owner of an enterprise and my wife would respond with a largely meaningless title that nonetheless satisfied.  Really, what does it mean to be a banker, lawyer, or even a candlestick maker to a non-banker, non-lawyer, or pyro-paranoid?

But the last five years-plus I have been entirely on my own and she often tries, “Well, he works in homeland security.”  (Which I bet they hear as Homeland Security.)  But when they begin talking about TSA, she is inclined to say, “He’s really not involved in that.”  And so they ask, “Then what does he do?”  Which she always finds tough to explain.

It occurs to me that this is another form of our seemingly perpetual question, “What is homeland security?”

I am not — never have been — part of a legacy profession: not law enforcement, not firefighting, not emergency management.  Neither Defense nor Intelligence have directly paid me one red cent.  I try to practice good habits, but have never “officially” practiced Public Health.  Recently and indirectly, I have done considerable work with the Coast Guard.  But I still get sea-sick.

Maybe I’m just a beltway bandit, a dirty contractor, a lousy vendor.  But this last year I donated more time than I billed.   Some consider me an academic, but I have never held a faculty appointment and have not been regularly employed by a post-secondary institution for nearly thirty years.  After a ten minute conversation a real scholar is sure I am not.

But I agree with my wife, I work in homeland security (not capitalized).

Here are a few things I did from December 30 to January 1 mostly from north of Seattle:

  • Continued drafting a briefing book on supply chain resilience.
  • Took a call from DHS officials on how a pandemic would likely impact the “national supply chain.”
  • Polled several supply chain professionals on the prior question.  Forwarded their answers.
  • Exchanged gifts with my sister’s family.
  • Reviewed and responded to policy drafts by others on an approach to advancing private-public relationships in homeland security (and Homeland Security).
  • Read Judge Pauley’s decision in ACLU v Clapper.  Wrote an HLSWatch post on same.
  • Researched problems UPS had with a Christmas surge in demand.
  • Contributed to an email exchange with scholars and practitioners on a Harvard Business Review article related to supply chain disruption. Forwarded the HBR piece to others.
  • Ate a large piece of rhubarb pie for breakfast and had a mid-morning snack of pecan pie.
  • Worked ahead on a late January conference keynote focused on catastrophic cascades in supply chain disruption.
  • Went with my Dad to get a massage and steam then joined my wife and sister’s family for dinner at a restaurant.
  • At 2:00 AM (Eastern) on New Years Day received an urgent request from a hospital for 10,000 bottles of water, reached out to various private sector sources.
  • Took my Dad to SeaTac Airport.
  • Confirmed delivery of water.
  • My wife and I had local oysters for lunch near Pike Place Market in Seattle.
  • Invoiced my in-kind donations related to a homeland security project, invoiced for a Coast Guard deterrence project, began bringing together some other invoices.  I am paid mostly by private sector clients. In some of these cases the money can be tracked back to public sector funding.
  • Flew back to Chicago into a blizzard.

And every morning I read the Bible and write some poetry.  Most weeks I dabble in art.  I am, at least in my own head, retired because I no longer supervise anyone nor belong to an organization.

I will give my wife a link to this post and suggest she forward to her family and friends. This is a good example of what I do.

It occurs to me that my particular case might be deconstructed into a set of abstractions that could also advance our understanding of homeland security.

What about:  Homeland security is a multidisciplinary perspective and set of skills usually focused on strategic threats and strategic vulnerabilities with regional or national consequences.  Homeland security gives particular attention to understanding and actuating functional and personal relationships to support analysis and action to mitigate risk by local, state, and national entities both public and private.

That’s also what I do.  How about you?

January 7, 2014

The Constitution as homeland

Filed under: General Homeland Security — by Philip J. Palin on January 7, 2014

This is the fifth in a series of anticipated posts closely reading the Constitution of the United States for homeland security implications. Readers are encouraged to use the comment function to add background, analysis, exegesis or exposition related to the text highlighted.

–+–

THE PREAMBLE

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

–+–

Homeland Security and Defense have been quite purposefully — presidentially — conflated into National Security (sharing a snug four-seater with foreign affairs and intelligence).   Defense is usually behind the wheel.  State Department still claims the front seat.  Intelligence is an increasingly insistent back-seat driver.  As far as the others are concerned, HS will be kept in a baby seat for several more years.

I have never perceived this to be a conducive shared-space for homeland security.   Now almost a teenager, it has been overly influenced by the often testosterone-driven, passive-aggressive, paranoid tendencies of its cynically sophisticated older siblings.   HS would have been better served by a more self-reflective and independent childhood.

But this does not mean I can or want to deny the important relationship between the young Department of Homeland Security and the worldly Department of Defense.

The successes and failures of Defense — and State and the intelligence community — set the context for many of the most treacherous issues of homeland security (capitalized or not).  The terrorist threat is morphing and growing with the proliferation of failed and near-failed states.  The cyber-vandalism/criminal/terrorist threat grows even as we have at times chosen to be first-mover.  In a world growing more and more interdependent and accessible, we should all hope the common defense will be exercised with insight and effectiveness.

But as we consider what is happening today in Syria, Iraq, Pakistan, Egypt, Yemen, Sea of Japan, South China Sea, across much of Northern Mexico, South Sudan, Central African Republic, Mali, Nigeria… and elsewhere… we should also endeavor to ensure that homeland security grows up as wise, capable and quickly as it can.

January 3, 2014

Friday Free Forum

Filed under: General Homeland Security — by Philip J. Palin on January 3, 2014

Today there is a blizzard in Boston (and nearby), a car bomb explosion in Beirut (and elsewhere), and the Fukushima nuclear power station continues in crisis.

Happy New Year.

What’s on your mind related to homeland security?

January 1, 2014

ACLU v Clapper: More complementary than conflicting?

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security,Terrorist Threats & Attacks — by Philip J. Palin on January 1, 2014

Last Friday Federal District Judge William H. Pauley III released his decision in ACLU v. Clapper. Busy with post-Christmas travel and such I mostly heard the headlines.

Before reading the actual text — and overly influenced by those headlines — I intended to post today on the divergence of Judge Pauley from Judge Leon’s Klayman v Obama decision (see prior post).

But when I finally read the actual text of the decision, this non-lawyer finds significant complementarity in what Judges Leon and Pauley have decided.

Yes, Leon found bulk collection of meta-data to be illegal, while Pauley found the same practice legal.  But decisions (lawyerly or not) are often as icebergs where most of the weight is found below the surface.

In their analysis of what is being done by the US intelligence community and the potential implications for liberty, the two decisions seem to me to reach somewhat similar judgments. But Leon perceives innate abuse where, in the particular case before him, Pauley sees and hears mostly prospective rather than actual harm.

Again, you should read the original — which can be downloaded here — but to support my reading and entice you to read more, here is the opening of the Pauley decision, the bold highlights are my own:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency (“NSA”) intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier.

Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing infonnation and might have permitted the.NSA to notify the Federal Bureau of lnvestigation (“FBI”) of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world. It launched a number of counter-measures, including a bulk telephony metadata collection program-a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people’s associations with one another.

The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program. Edward Snowden’s unauthorized disclosure of Foreign Intelligence Surveillance Court (“FISC”) orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government’s bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.

Legality, efficacy, and wisdom are three quite different standards. They may — or may not — overlap.

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